THIS PURCHASE
AGREEMENT (“ Agreement ”) is made as of the 1st
day of June 2009, by and between ION Geophysical Corporation
(the “ Company ”), a corporation organized under
the laws of the State of Delaware, with its principal offices at
2105 CityWest Blvd., Suite 400, Houston, Texas 77042-2839, and
the purchaser whose name and address is set forth on the signature
page hereof (the “ Purchaser ”).
IN CONSIDERATION
of the mutual covenants contained in this Agreement, the Company
and the Purchaser agree as follows:
1.
Authorization of Sale of the Shares . Subject to the terms
and conditions of the Agreements (as defined below), the Company
has authorized the issuance and sale of up to 18,500,000 shares
(the “ Shares ”) of common stock, par value
$0.01 per share (the “ Common Stock ”) and the
preferred stock purchase rights appurtenant thereto (the “
Rights ”), of the Company.
2.
Agreement to Sell and Purchase the Shares . At the Closing
(as defined in Section 3 ), the Company will, subject
to the terms of this Agreement, issue and sell to the Purchaser and
the Purchaser will buy from the Company, upon the terms and
conditions hereinafter set forth, the number of Shares (at the
purchase price) shown on the signature page hereof.
The Company is
simultaneously entering into this same form of purchase agreement
with certain other investors (the “ Other Purchasers
”) and expects to complete sales of the Shares to them. The
Purchaser and the Other Purchasers are hereinafter sometimes
collectively referred to as the “ Purchasers ,”
and this Agreement and the purchase agreements executed by the
Other Purchasers are hereinafter sometimes collectively referred to
as the “ Agreements .” The term “
Placement Agent ” shall mean Barclays Capital Inc., as
placement agent.
3. Delivery
of the Shares at the Closing; Termination.
3.1
Closing . The completion of the purchase and sale of the
Shares (the “ Closing ”) shall occur at the
offices of Andrews Kurth LLP, 600 Travis, Suite 4200, Houston,
Texas 77002, as soon as practicable and as agreed to by the parties
hereto, within three business days following the execution of the
Agreements, or on such later date or at such different location as
the parties shall agree in writing, but not prior to the date that
the conditions for Closing set forth below have been satisfied or
waived by the appropriate party (the “ Closing Date
”).
3.2
Closing Deliveries . At the Closing, the Purchaser shall
deliver, in immediately available funds, the full amount of the
purchase price for the Shares being purchased hereunder by wire
transfer to an account designated by the Company and the Company
shall deliver to the Purchaser one or more stock certificates
registered in the name of
the Purchaser,
or in such nominee name(s) as designated by the Purchaser in
writing, representing the number of Shares set forth in
Section 2 above and bearing an appropriate legend
referring to the fact that the Shares were sold in reliance upon
the exemption from registration under the Securities Act of 1933,
as amended (the “ Securities Act ”), provided by
Section 4(2) thereof and Rule 506 thereunder. The name(s)
in which the stock certificates are to be registered are set forth
in the Stock Certificate Questionnaire attached hereto as part of
Appendix I .
3.3
Conditions to the Company’s Obligations . The
Company’s obligation to complete the purchase and sale of the
Shares and deliver such stock certificate(s) to the Purchaser at
the Closing shall be subject to the following conditions, any one
or more of which may be waived by the Company:
(a) receipt by the
Company of same-day funds in the full amount of the purchase price
for the Shares being purchased hereunder;
(b) completion of
the purchases and sales under the Agreements with the Other
Purchasers;
(c) the accuracy
of the representations and warranties made by the Purchasers and
the fulfillment of those undertakings of the Purchasers to be
fulfilled prior to the Closing; and
(d) receipt by the
Company from the Purchaser of the fully completed questionnaires
attached hereto as Appendix I .
3.4
Conditions to the Purchaser’s Obligations . The
Purchaser’s obligation to accept delivery of such stock
certificate(s) and to pay for the Shares evidenced thereby shall be
subject to the following conditions, any one or more of which may
be waived by the Purchaser:
(a) the closing of
purchases of Common Stock by the Other Purchasers equal to at least
the Minimum Purchase Amount; for purposes of this Agreement, the
“ Minimum Purchase Amount ” means such number of
shares of Common Stock to be purchased by the Other Purchasers
under the Agreements that, when combined with the number of Shares
to be purchased by the Purchaser pursuant to this Agreement and
multiplied by the price at which those shares and the Shares are to
be purchased, is equal to $35,000,000;
(b) each of the
representations and warranties of the Company made herein shall be
accurate as of the Closing Date;
(c) the delivery
to the Purchaser by counsel to the Company of legal opinions
substantially similar in substance to the forms of opinion attached
as Exhibit B hereto;
(d) receipt by the
Placement Agent, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may
be, in form and substance satisfactory to the Placement Agent, from
Ernst & Young LLP (i) confirming that they are independent
public accountants within the
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meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Rules and Regulations
and (ii) containing statements and information of the type
ordinarily included in accountants’ “comfort
letters” to underwriters in registered public offering with
respect to the financial statements and certain financial
information contained in the Private Placement
Memorandum;
(e) receipt by the
Purchaser of a certificate executed by the chief executive officer
and the chief financial or accounting officer of the Company, dated
as of the Closing Date, to the effect that the representations and
warranties of the Company set forth herein are true and correct as
of the date of this Agreement and as of such Closing Date and that
the Company has complied with all the agreements and satisfied all
the conditions herein on its part to be performed or satisfied on
or prior to such Closing Date;
(f) receipt by the
Purchaser of a certificate of the Secretary of the Company, dated
as of the Closing Date:
(i) certifying the
resolutions adopted by the Board of Directors of the Company
approving the transactions contemplated by this Agreement and the
issuance of the Shares;
(ii) certifying
the current versions of the Restated Certificate of Incorporation
and the Amended and Restated Bylaws of the Company; and
(iii) certifying
as to the signatures and authority of the persons signing this
Agreement and related documents on behalf of the
Company;
(g) receipt by the
Purchaser of a certificate of good standing for the Company for its
jurisdiction of incorporation and a certificate of qualification as
a foreign corporation for the Company for any jurisdictions in
which it is qualified to transact business as a foreign
corporation;
(h) receipt by the
Purchaser of a certificate from the Company’s transfer agent
certifying the number of shares of Common Stock outstanding as of
the Closing Date;
(i) there shall
have been no suspensions in the trading of the Common Stock as of
the Closing Date;
(j) the Common
Stock shall continue to be listed on The New York Stock Exchange as
of the Closing Date and the Shares shall be approved for
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listing on The
New York Stock Exchange as of the Closing Date, subject to official
notice of issuance; and
(k) the
fulfillment in all material respects of those undertakings of the
Company to be fulfilled prior to the Closing.
3.5
Termination . This Agreement shall automatically terminate
if the Closing has not occurred prior to June 15, 2009.
Without limiting the generality of the foregoing, in event of such
termination, neither party shall have any obligation to sell or
purchase the Shares.
4.
Representations, Warranties and Covenants of the Company.
The Company hereby represents and warrants to, and covenants with,
the Purchaser as follows:
4.1
Organization and Qualification . The Company is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, and the Company
is qualified to transact business as a foreign corporation in each
jurisdiction in which qualification is required, except where the
failure to so qualify would neither have nor reasonably be expected
to have a Material Adverse Effect (as defined in
Section 4.6 ). Each subsidiary (as defined under
Rule 405 promulgated under the Securities Act) of the Company
(each, a “ Subsidiary ” and collectively, the
“ Subsidiaries ”) are listed on
Exhibit A to this Agreement. Each Subsidiary is a
direct or indirect wholly owned subsidiary of the Company. Each
Subsidiary is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and is qualified
to transact business as a foreign corporation in each jurisdiction
in which qualification is required, except where failure to so
qualify would neither have nor reasonably be expected to have a
Material Adverse Effect.
4.2
Reporting Company; Form S-3 . The Company is not an
“ineligible issuer” (as defined in Rule 405
promulgated under the Securities Act) and is eligible to register
the resale of the Shares by the Purchaser on a registration
statement on Form S-3 under the Securities Act. The Company is
subject to the reporting requirements of the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
and has filed all reports required thereby during the past 12
calendar months. Provided that none of the Purchasers is deemed to
be an underwriter with respect to any shares and except as provided
on Schedule 4.2 hereto, to the Company’s
knowledge, there exist no facts or circumstances (including without
limitation any required approvals or waivers or any circumstances
that may delay or prevent the obtaining of accountant’s
consents) that reasonably could be expected to prohibit the
preparation and filing of a registration statement on Form S-3 that
will be available for the resale of the Shares by the
Purchaser.
4.3
Authorized Capital Stock . The Company had duly authorized
and validly issued outstanding capitalization as set forth in the
“Capitalization” section of the Private Placement
Memorandum (as defined below) as of the date set forth therein; the
issued and outstanding shares of Common Stock (a) have been
duly authorized and validly issued, (b) are fully paid and
nonassessable, (c) have been issued in compliance with all
federal and state securities laws and, (d) except for those
granted therein by the holders thereof (other than the Company),
are free and clear of all security interests, liens, pledges,
mortgages or other encumbrances, whether arising voluntarily,
involuntarily or by operation of law (“ Liens
”), (e)
4
were not issued
in violation of or subject to any preemptive rights or other rights
to subscribe for or purchase securities, and (f) conform in
all material respects to the description thereof contained in the
confidential private placement memorandum dated May 26, 2009
(together with any exhibits, amendments and supplements thereto and
all information incorporated by reference therein, the “
Private Placement Memorandum”) . Except as set forth
in the Private Placement Memorandum and except for the stock
options or other equity incentives that have been issued since
May 26, 2009, the Company does not have outstanding any
options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights,
convertible securities or obligations. With respect to each of the
Subsidiaries, (i) all of the issued and outstanding shares of
such Subsidiary’s capital stock (or equity interests in the
case of non-corporate entities) have been duly authorized and
validly issued, are fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities, and (ii) there
are no outstanding options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to
issue or sell, shares of such Subsidiary’s capital stock or
any such options, rights, convertible securities or
obligations.
4.4
Rights Agreement . The Rights Agreement, dated as of
December 30, 2008, between the Company and Computershare Trust
Company, N.A., as Rights Agent, (the “ Rights
Agreement ”), has been duly authorized, executed and
delivered by the Company. The Rights have been duly authorized by
the Company and, when issued upon issuance of the Shares, will be
validly issued. The Series A Junior Participating Preferred
Stock, par value $0.01 per share (the “ Rights
Preferred ”), has been duly authorized by the Company and
validly reserved for issuance. Upon the exercise of the Rights in
accordance with the terms of the Rights Agreement, the Rights
Preferred, Common Stock or other securities issued pursuant to the
Rights Agreement will be validly issued, fully paid and
non-assessable.
4.5
Issuance, Sale and Delivery of the Shares . The issuance and
sale of the Shares have been duly authorized by the Company and the
Shares, when issued, delivered and paid for in the manner set forth
in this Agreement, will be validly issued, fully paid and
nonassessable, and will conform in all material respects to the
description thereof set forth in the Private Placement Memorandum.
No preemptive rights or other rights to subscribe for or purchase
any shares of Common Stock of the Company exist with respect to the
issuance and sale of the Shares by the Company pursuant to this
Agreement that have not been waived or complied with. No
stockholder of the Company has any right (which has not been waived
or has not expired by reason of lapse of time following
notification of the Company’s intention to file the
Registration Statement (as hereinafter defined)) to require the
Company to register the sale of any capital stock owned by such
stockholder under the Registration Statement. No further approval
or authority of the Company’s stockholders or the Board of
Directors of the Company will be required for the issuance and sale
of the Shares to be sold by the Company as contemplated
herein.
4.6
Due Execution, Delivery and Performance of the Agreements .
The Company has full legal right, corporate power and authority to
enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized,
5
executed and
delivered by the Company. This Agreement constitutes a legal, valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws and judicial decisions of general
application relating to or affecting the enforcement of
creditors’ rights generally and the application of general
equitable principles relating to the availability of remedies, and
except as rights to indemnity or contribution, including but not
limited to, indemnification provisions set forth in
Section 7.3 of this Agreement, may be limited by
federal or state securities law or the public policy underlying
such laws. The execution and performance of this Agreement by the
Company and the consummation of the transactions herein
contemplated will not violate any provision of the Restated
Certificate of Incorporation or Restated Bylaws of the Company or
the organizational documents of any Subsidiary and will not result
in the creation of any Liens upon any assets of the Company or any
Subsidiary pursuant to the terms or provisions of, or will not
conflict with, result in the breach or violation of, or constitute,
either by itself or upon notice or the passage of time or both, a
default under any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument to which
any of the Company or any Subsidiary is a party or by which any of
the Company or any Subsidiary or their respective properties may be
bound or affected and in each case that would have or reasonably be
expected to have a Material Adverse Effect, any statute or any
authorization, judgment, decree, order, rule or regulation of any
court or any regulatory body, administrative agency or other
governmental agency or body applicable to the Company or any
Subsidiary or any of their respective properties. No consent,
approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental agency or body is
required for the execution and delivery of this Agreement by the
Company or the consummation by the Company of the transactions
contemplated by this Agreement, except for compliance with the Blue
Sky laws and federal securities laws applicable to the offering of
the Shares and such as may be required by the bylaws and rules of
the Financial Industry Regulatory Authority, Inc. or The New York
Stock Exchange, Inc. For the purposes of this Agreement, the term
“ Material Adverse Effect ” shall mean any
material adverse effect on the business, properties, assets,
operations, results of operations, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries, taken
as a whole, or on the transactions contemplated hereby or by the
agreements and instruments to be entered into in connection
herewith or therewith, or on the authority or ability of the
Company to perform its obligations hereunder.
4.7
Accountants . Ernst & Young LLP, who has reported on the
consolidated financial statements and schedules contained in the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2008 (which are incorporated by reference into
the Private Placement Memorandum), are registered independent
public accountants as required by the Securities Act and the rules
and regulations promulgated thereunder (the “ 1933 Act
Rules and Regulations ”) and by the rules of the Public
Accounting Oversight Board.
4.8
No Defaults or Consents . Neither the execution, delivery
and performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby
(including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with
or result in the breach of any term or provision of, or constitute
a default (or an event that with notice or lapse of time or both
would constitute a default) under, except such
6
defaults that
individually or in the aggregate would neither cause nor reasonably
be expected to cause a Material Adverse Effect, or require any
consent or waiver under, or result in the execution or imposition
of any Liens upon any properties or assets of the Company or its
Subsidiaries pursuant to the terms of, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which either the
Company or its Subsidiaries or any of its or their properties or
businesses is bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation applicable to the
Company or any of its Subsidiaries or violate any provision of the
charter or by-laws of the Company or any of its Subsidiaries,
except for such consents or waivers that have already been obtained
and are in full force and effect.
4.9
Contracts . The material contracts to which the Company is a
party that have been filed as exhibits to the SEC Documents (as
defined in Section 4.2020 ), have been duly and validly
authorized, executed and delivered by the Company and constitute
the legal, valid and binding agreements of the Company, enforceable
by and against it in accordance with their respective terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws and
judicial decisions of general application relating to enforcement
of creditors’ rights generally, and the application of
general equitable principles relating to or affecting the
availability of remedies, and except as rights to indemnity or
contribution may be limited by federal or state securities laws or
the public policy underlying such laws.
4.10
No Actions . There are no legal or governmental actions,
suits or proceedings pending or, to the Company’s knowledge,
threatened against the Company or any Subsidiary before or by any
court, regulatory body or administrative agency or any other
governmental agency or body, domestic or foreign, which actions,
suits or proceedings, individually or in the aggregate, would have
or reasonably be expected to have a Material Adverse Effect; and no
labor disturbance by the employees of the Company exists or, to the
Company’s knowledge, is imminent, that would have or
reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any Subsidiary is a party to or subject to the
provisions of any injunction, judgment, decree or order of any
court, regulatory body, administrative agency or other governmental
agency or body that would have or reasonably be expected to have a
Material Adverse Effect.
4.11
Properties . The Company and each Subsidiary has good and
valid title to all items of tangible personal property described as
owned by it in the consolidated financial statements included in
the Private Placement Memorandum that are material to the
businesses of the Company and its Subsidiaries taken as a whole, in
each case free and clear of all Liens except for those disclosed in
the SEC Documents, or those, individually or in the aggregate, that
(i) do not materially interfere with the use made and proposed
to be made of such property by the Company and its Subsidiaries or
(ii) would neither have nor reasonably be expected to have a
Material Adverse Effect. Any real property described in the Private
Placement Memorandum as being leased by the Company or any
Subsidiary that is material to the business of the Company and its
Subsidiaries, taken as a whole, is held by them under valid,
existing and enforceable leases, except those that, individually or
in the aggregate, (A) do not materially interfere with the use
made or proposed to be made of such property by the Company and its
Subsidiaries or (B) would neither have nor reasonably be
expected to have a Material Adverse Effect.
7
4.12
No Material Adverse Change . Except as disclosed in the
Private Placement Memorandum or the SEC Documents, since
December 31, 2008 (i) the Company and its Subsidiaries
have not incurred any material liabilities or obligations, indirect
or contingent, or entered into any material agreement or other
transaction that is not in the ordinary course of business or that
could reasonably be expected to result in a material reduction in
the future earnings of the Company; (ii) the Company and its
Subsidiaries have not sustained any material loss or material
interference with their businesses or properties from fire, flood,
windstorm, accident or other calamity not covered by insurance;
(iii) the Company and its Subsidiaries have not paid or
declared any dividends or other distributions with respect to their
capital stock and none of the Company or any Subsidiary is in
material default in the payment of principal or interest on any
outstanding long-term debt obligations; (iv) there has not
been any change in the capital stock of the Company or its
Subsidiaries other than the sale of the Shares hereunder and shares
or options issued pursuant to employee equity incentive plans or
purchase plans approved by the Company’s Board of Directors,
or indebtedness material to the Company or its Subsidiaries (other
than in the ordinary course of business and any required scheduled
payments); and (v) there has not occurred any event that has
caused or would reasonably be expected to cause a Material Adverse
Effect.
4.13
Amendment to Credit Facility . The Company has consummated
the Amendment to Credit Facility as described in the Private
Placement Memorandum.
4.14
Intellectual Property . Except as disclosed in the Private
Placement Memorandum or the SEC Documents, (i) the Company and
each Subsidiary owns or has obtained valid and enforceable licenses
or options for the inventions, patent applications, patents,
trademarks (both registered and unregistered), trade names,
copyrights and trade secrets necessary for the conduct of its
respective business as currently conducted (collectively, the
“ Intellectual Property ”); and (ii)
(a) there are no third parties who have any ownership rights
or other claims to any Intellectual Property that is owned by, or
has been licensed to, the Company or any Subsidiary for the
products and services of the Company and its Subsidiaries described
in the Private Placement Memorandum or the SEC Documents that would
preclude the Company or any Subsidiary from conducting its business
as currently conducted and have or reasonably be expected to have a
Material Adverse Effect, except for the ownership rights of the
owners of the Intellectual Property licensed or optioned by the
Company or any Subsidiary; (b) there are currently no sales of
any products or the provision of services that would constitute an
infringement by third parties of any Intellectual Property owned,
licensed or optioned by the Company or any Subsidiary, which
infringement would have or reasonably be expected to have a
Material Adverse Effect; (c) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the rights of the Company or any
Subsidiary in or to any Intellectual Property owned, licensed or
optioned by the Company or any Subsidiary, other than claims that
would neither have nor reasonably be expected to have a Material
Adverse Effect; (d) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any
Intellectual Property owned, licensed or optioned by the Company or
any Subsidiary, other than actions, suits, proceedings and claims
that would neither have nor reasonably be expected to have a
Material Adverse Effect; and (e) there is no pending or, to
the Company’s knowledge, threatened action, suit, proceeding
or claim by others that the Company or any Subsidiaries infringes
or otherwise violates any patent, trademark, copyright, trade
secret or other proprietary right of
8
others, other
than actions, suits, proceedings and claims that would neither have
nor reasonably be expected to have a Material Adverse
Effect.
4.15
Compliance . Neither the Company nor any of its Subsidiaries
have been advised, nor do any of them have any reason to believe,
that it is not conducting business in compliance with all
applicable laws, rules and regulations of the jurisdictions in
which it is conducting business, including, without limitation, all
applicable local, state and federal environmental laws and
regulations, except where failure to be so in compliance would
neither have nor reasonably be expected to have a Material Adverse
Effect.
4.16
Taxes . The Company and each Subsidiary has filed all
required tax returns, and all such tax returns are true, correct
and complete in all material respects. The Company and each
Subsidiary has fully paid all taxes shown as due thereon. None of
the Company or any Subsidiary has knowledge of any deficiency or
assessment with respect to liabilities for any material taxes that
has been or might be asserted or threatened against it, which has
not been fully paid or finally settled, unless being contested in
good faith through appropriate proceedings and for which adequate
reserves are reflected in the Company’s consolidated
financial statements. All tax liabilities accrued through the date
hereof have been adequately reserved for in the Company’s
consolidated financial statements.
4.17
Transfer Taxes . On the Closing Date, all stock transfer or
other taxes (other than income taxes) that are required to be paid
in connection with the transactions contemplated by this Agreement
will be, or will have been, fully paid by the Company and all laws
imposing such taxes will be or will have been fully complied
with.
4.18
Investment Company . The Company is not an “investment
company” or “promoter” or “principal
underwriter” for an investment company, within the meaning of
the Investment Company Act of 1940, as amended, and the rules and
regulations of the Securities and Exchange Commission (the “
Commission ”) promulgated thereunder.
4.19
Offering Materials . None of the Company, its directors and
officers has distributed or will distribute prior to the Closing
Date any offering material, including, without limitation, any
“free writing prospectus” (as defined in Rule 405
promulgated under the Securities Act), in connection with the
offering and sale of the Shares other than the Private Placement
Memorandum or any amendment or supplement hereto. The Company has
not in the past nor will it hereafter take any action independent
of the Placement Agent to sell, offer for sale or solicit offers to
buy any securities of the Company that could result in the initial
sale of the Shares not being exempt from the registration
requirements of Section 5 of the Securities Act.
4.20
Insurance . The Company maintains insurance underwritten by
insurers of recognized financial responsibility, of the types and
in the amounts that the Company reasonably believes is adequate for
its business, including, but not limited to, insurance covering all
real and personal property owned or leased by the Company against
theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, with such deductibles as are customary
for companies in the same or similar business, all of which
insurance is in full force and effect.
9
4.21
Additional Information . The information contained in the
following documents (the “ SEC Documents ”),
which the Placement Agent has furnished to the Purchaser (or will
furnish prior to the Closing) or which are otherwise available
through the Commission’s EDGAR system, as of the dates
thereof, did 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, in light of the
circumstances in which they were made, not misleading:
(a) the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2008;
(b) the
Company’s Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2009;
(c) the
Company’s Definitive Proxy Statement for the Annual Meeting
of Stockholders held on May 27, 2009;
(d) the
Company’s Schedule TO filed on April 9 and
April 24, 2009;
(e) the
Company’s Current Reports on Form 8-K filed on
January 5, January 5, January 29, March 4 and
April 1, 2009;
(f) the
description of the Company’s common stock contained in its
Registration Statement on Form 8-A filed on October 17, 1994,
as amended by the Company’s Current Reports on Form 8-K filed
with the Commission on March 8, 2002, December 20, 2007
and February 28, 2008, respectively;
(g) all other
documents, if any, filed by the Company (excluding the Current
Reports on Form 8-K or the portions thereof furnished under
Item 2.02 or Item 7.01 of Form 8-K) with the Commission
since December 31, 2008 pursuant to the reporting requirements
of the Exchange Act.
The SEC Documents
incorporated by reference in the Private Placement Memorandum or
attached as exhibits thereto, at the time they became effective or
were filed with the Commission, as the case may be, complied in all
material respects with the requirements of the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder (the “ 1934 Act Rules and Regulations
” and, together with the 1933 Act Rules and Regulations, the
“ Rules and Regulations ”). In the past 12
calendar months, the Company has filed all documents required to be
filed by it prior to the date hereof with the Commission pursuant
to the reporting requirements of the Exchange Act and the 1934 Act
Rules and Regulations.
4.22
Price of Common Stock . The Company has not taken, and will
not take, directly or indirectly, any action designed to cause or
result in, or that has constituted or that might reasonably be
expected to constitute, the stabilization or manipulation of the
price of the shares of the Common Stock to facilitate the sale or
resale of the Shares.
4.23
Use of Proceeds . The Company shall use the proceeds from
the sale of the Shares as described under “Use of
Proceeds” in the Private Placement Memorandum.
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4.24
Non-Public Information . Except as disclosed in the Private
Placement Memorandum, the Company has not disclosed to the
Purchaser information that would constitute material non-public
information as of the Closing Date other than the existence of the
transactions contemplated hereby.
4.25
Use of Purchaser Name . Except as otherwise required by
applicable law or regulation, the Company shall not use the
Purchaser’s name or the name of any of its Affiliates (as
defined below) in any advertisement, announcement, press release or
other similar public communication unless it has received the prior
written consent of the Purchaser for the specific use contemplated,
which consent shall not be unreasonably withheld or delayed. For
purposes of this Agreement, “ Affiliate ” means,
with respect to any natural person, firm, partnership, association,
corporation, limited liability company, company, trust, entity,
public body or government (a “ Person ”), any
Person that, directly or indirectly, controls, is controlled by, or
is under common control with, such Person. The term
“control” (including the terms “controlled
by” and “under common control with”) as used in
this definition means the possession, directly or indirectly, of
the power to direct or cause the direction of management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. With respect to any natural
person, the term “Affiliate” means (i) the spouse
or children (including those by adoption) and siblings of such
Person; and any trust whose primary beneficiary is such Person,
such Person’s spouse, such Person’s siblings and/or one
or more of such Person’s lineal descendants, (ii) the
legal representative or guardian of such Person or of any such
immediate family member in the event such Person or any such
immediate family member becomes mentally incompetent and
(iii) any Person controlled by or under common control with
any one or more of such Person and the Persons described in clauses
(i) or (ii) preceding.
4.26
Related-Party Transactions . No transaction has occurred
between or among the Company, on the one hand, and its Affiliates,
officers or directors on the other hand, that is required to have
been described under applicable securities laws and the rules and
regulations promulgated thereunder in its Exchange Act filings and
is not so described in such filings.
4.27
Off-Balance Sheet Arrangements . There is no transaction,
arrangement or other relationship between the Company and an
unconsolidated or other off-balance sheet entity that is required
to be disclosed by the Company in its Exchange Act filings and is
not so disclosed or that otherwise would have or would reasonably
be expected to have a Material Adverse Effect. There are no such
transactions, arrangements or other relationships with the Company
that may create any material contingencies or liabilities that are
not otherwise disclosed by the Company in its Exchange Act
filings.
4.28
Governmental Permits, Etc . The Company and each Subsidiary
has all franchises, licenses, certificates and other authorizations
from federal, state or local governments or governmental agencies,
departments or bodies that are currently necessary for the
operation of the business of the Company and its Subsidiaries as
currently conducted, except where the failure to possess currently
such franchises, licenses, certificates and other authorizations
would neither have nor reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary has received
any notice of proceedings relating to the revocation or
11
modification of
any such permit that, if the subject of an unfavorable decision,
ruling or finding, would have or would reasonably be expected to
have a Material Adverse Effect.
4.29
Financial Statements . The consolidated financial statements
of the Company and the related notes and schedules thereto included
in its Exchange Act filings present fairly, in all material
respects, the financial condition of the Company and its
consolidated Subsidiaries as of the dates thereof and the results
of operations, stockholders’ equity and cash flows of the
Company and its consolidated Subsidiaries at the dates and for the
periods covered thereby. Such financial statements and the related
notes and schedules thereto have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise noted therein)
and all adjustments necessary for a fair presentation of results
for such periods have been made; provided, however, that the
unaudited financial statements are subject to normal year-end audit
adjustments (which are not expected to be material) and do not
contain all footnotes required under generally accepted accounting
principles.
4.30
Listing Compliance . The Company is in compliance with the
requirements of The New York Stock Exchange for continued listing
of the Common Stock thereon. The Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or the
listing of the Common Stock on The New York Stock Exchange, nor has
the Company received any notification that the Commission or The
New York Stock Exchange is currently contemplating terminating such
registration or listing. The transactions contemplated by this
Agreement will not contravene the rules and regulations of The New
York Stock Exchange. The Company will comply with all requirements
of The New York Stock Exchange with respect to the issuance of the
Shares and shall cause the Shares to be listed on The New York
Stock Exchange and listed on any other exchange on which the Common
Stock is listed on or before (subject to official notice of
issuance) the Closing Date.
4.31
Internal Accounting Controls . The Company maintains a
system of internal accounting controls sufficient to provide
reasonable assurances 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. The
Company maintains disclosure controls and procedures (as defined in
Rules 13a-15 and 15d-15 under the Exchange Act) that are
designed to ensure that material information relating to the
Company is made known to the Company’s principal executive
officer and the Company’s principal financial officer or
persons performing similar functions. Except as set forth in the
Private Placement Memorandum or the SEC Documents, there is and has
been no failure on the part of the Company, or to its knowledge
after due inquiry, any of the Company’s directors or
officers, in their capacities as such, to comply with any
applicable provisions of the Sarbanes Oxley Act of 2002 and the
rules and regulations promulgated therewith (the “
Sarbanes Oxley Act ”). Each of the principal executive
officer and the principal financial officer of the Company (or each
former principal executive officer of the Company and each former
principal financial officer of the Company as
12
applicable) has
made all certifications required by Sections 302 and 906 of
the Sarbanes-Oxley Act with respect to all reports, schedules,
forms, statements and other documents required to be filed by it
with the Commission. For purposes of the preceding sentence,
“principal executive officer” and “principal
financial officer” shall have the meanings given to such
terms in the Sarbanes-Oxley Act. The Company has taken all
reasonable actions necessary to ensure that it is in compliance
with all provisions of the Sarbanes-Oxley Act that are in effect
and with which the Company is required to comply.
4.32
Foreign Corrupt Practices . Neither the Company nor any
Subsidiary has, nor, to the knowledge of the Company, has any
director, officer, agent or employee, in the course of its actions
for, or on behalf of, the Company (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other
unlawful expenses relating to political activity; (ii) made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds;
(iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended; or
(iv) made any unlawful bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to any foreign or
domestic government official or employee.
4.33
Employee Relations . Neither the Company nor any Subsidiary
is a party to any collective bargaining agreement or employs any
member of a union (other than with regards to statutory unions
required under foreign laws and regulations). The Company and each
Subsidiary believe that their relations with their employees are
good. No executive officer of the Company (as defined in Rule
501(f) promulgated under the Securities Act) has notified the
Company that such officer intends to leave the Company or otherwise
terminate such officer’s employment with the Company. No
executive officer of the Company is, or is now expected to be, in
violation of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement,
non-competition agreement or any other agreement or any restrictive
covenant, and the continued employment of each such executive
officer does not subject the Company or any Subsidiary to any
liability with respect to any of the foregoing matters.
4.34
ERISA . Each material employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ ERISA ”),
that is maintained, administered or contributed to by the Company
or any of its Affiliates for employees or former employees of the
Company and its Subsidiaries, or to which the Company or any of its
Subsidiaries has any liability thereunder (a “Company Benefit
Plan”), has been maintained in material compliance with its
terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “ Code
”); no action, dispute, claim, suit or proceeding is pending
or, to the knowledge of the Company, threatened with respect to any
Company Benefit Plan (other than claims for benefits in the
ordinary course) that could result in a material liability to the
Company; no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has
occurred that could result in a material liability to the Company
with res
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