Exhibit
1.1
MAIDENFORM BRANDS, INC.
4,000,000 Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
November 20, 2006
UNDERWRITING AGREEMENT
November 20, 2006
Credit Suisse
Securities (USA) LLC
Eleven Madison
Avenue,
New York, N.Y.
10010-3629
Ladies and
Gentlemen:
The persons named in Schedule A annexed
hereto (the “Selling Stockholders”), severally and not
jointly, propose to sell to you (the “Underwriter”), an
aggregate of 4,000,000 shares (the “Shares”) of Common
Stock, $0.01 par value (the “Common Stock”), of
Maidenform Brands, Inc., a Delaware corporation (the
“Company”), in the respective amounts set forth in
Schedule A annexed hereto. The Shares are described in the
Base Prospectus which is referred to below.
The Company has filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules
and regulations thereunder (collectively, the “Act”),
with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(File No. 333-138314) under the Act filed on October 31, 2006 (the
“registration statement”). Such registration statement,
as so amended, has been declared by the Commission to be effective
under the Act. The Company will next file with the Commission
pursuant to Rule 424(b) under the Act a final prospectus supplement
to the base prospectus, describing the Shares and the offering
thereof, in such form as has been provided to or discussed with,
and approved by, the Underwriter.
The term “ Registration Statement
” as used in this Agreement means the registration statement,
as amended at the time it became effective and as supplemented or
amended (including all information deemed to be part of and
included in the registration statement pursuant to Rule 430B under
the Act) prior to the execution of this Agreement, including (i)
all financial schedules and exhibits thereto and (ii) all documents
incorporated by reference or deemed to be incorporated by reference
therein. If an abbreviated registration statement is prepared and
filed with the Commission in accordance with Rule 462(b) under the
Act (an “ Abbreviated Registration Statement ”),
the term “ Registration Statement ” includes the
Abbreviated Registration Statement.
The term “ Base Prospectus ”
as used in this Agreement means the base prospectus, dated as of
November 16, 2006, included in the Registration Statement at the
time it was declared effective by the Commission or in the form in
which it has been most recently filed with the Commission on or
prior to the date of this Agreement. The term “ Prospectus
Supplement ” as used in this Agreement means the final
prospectus supplement specifically relating to the Shares in the
form that is first filed with the Commission pursuant to Rule 424
under the Act after the date and time this Agreement is executed
and delivered by the parties hereto. The term “
Prospectus ” as used in this Agreement means the Base
Prospectus as amended or supplemented by the Company prior to the
date of the filing of the Prospectus Supplement together with the
Prospectus Supplement.
“ Permitted Free Writing
Prospectuses ,” as used herein, means the documents
listed on Schedule B attached hereto and each “road
show” (as defined in Rule 433 under the Act), if any, related
to the offering of the Shares contemplated hereby that is a
“written communication” (as defined in Rule 405 under
the Act) (each such road show, a “Road Show”). “
Disclosure Package ,” as used herein, means the Base
Prospectus and the Permitted Free Writing Prospectuses, if any, all
considered together.
Any reference herein to the registration
statement, the Registration Statement, the Base Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act. Any reference herein
to the terms “ amend ,” “ amendment
” or “ supplement ” with respect to the
Registration Statement, the Base Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the “Exchange Act”) after the effective
date of the Registration Statement, or the date of such Base
Prospectus, or the Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference (the
“Incorporated Documents”).
As used herein, “business day” shall
mean a day on which the New York Stock Exchange is open for
trading.
The Company, the Selling Stockholders and the
Underwriter agree as follows:
1.
Sale and Purchase
. Upon the basis of the
representations and warranties and subject to the terms and
conditions herein set forth, each of the Selling Stockholders,
severally and not jointly, agrees to sell to the Underwriter and
the Underwriter agrees to purchase from each Selling Stockholder
the number of Shares set forth opposite the name of such Selling
Stockholder in Schedule A attached hereto, in each case at a
purchase price of $19.90 per Share. Each Selling Stockholder is
advised by you that you intend to offer the Shares for sale to the
public as soon after this Agreement has been entered into as in
your judgment is advisable.
Pursuant to powers of attorney (individually, a
“Power-of-Attorney” and collectively, the
“Powers-of-Attorney”), which shall be reasonably
satisfactory to counsel for the Underwriter, granted by each
Selling Stockholder, Thomas J. Ward, Dorvin D. Lively and Steven N.
Masket will act as the attorneys-in-fact of the Selling
Stockholders. The foregoing attorneys-in-fact (the
“Attorneys-in-Fact of the Selling Stockholders”) are
authorized, on behalf of each Selling Stockholder, to execute any
documents necessary or desirable in connection with the sale of the
Shares to be sold hereunder by each Selling Stockholder, to make
delivery of the certificates for such Shares, to receive the
proceeds of the sale of such Shares, to give receipts for such
proceeds, to pay therefrom the expenses to be borne by each Selling
Stockholder in connection with the sale and public offering of the
Shares, to distribute the balance of such proceeds to each Selling
Stockholder in proportion to the number of Shares sold by each
Selling Stockholder, to receive notices on behalf of each Selling
Stockholder and to take such other action as may be necessary or
desirable in connection with the transactions contemplated by this
Agreement.
2.
Payment and Delivery
. Payment of the purchase price for
the Shares shall be made to each of the Selling Stockholders by
wire transfer of immediately available funds, against delivery of
the certificates for the Shares to you through the facilities of
The Depository Trust Company (“DTC”) for the account of
the Underwriter. Such payment and delivery shall be made at 10:00
A.M., New York City time, on November 27, 2006 (unless another time
shall be agreed to by you and the Company and the Attorneys-in-Fact
of the Selling Stockholders) to an account at a bank acceptable to
you made to the order of Continental Stock Transfer & Trust
Company, as custodian (the “Custodian”) for the Shares.
The time at which such payment and delivery are to be made is
hereinafter sometimes called “the time of purchase.”
Electronic transfer of the Shares shall be made to you at the time
of purchase in such names and in such denominations as you shall
specify.
Deliveries of the documents described in Section
7 hereof with respect to the purchase of the Shares shall be made
at the offices of Latham & Watkins LLP, 633 West Fifth Street,
Suite 4000, Los Angeles, California 90071, at 10:00 A.M., New York
City time, on the date of the closing of the purchase of the
Shares.
3.
Representations and Warranties of
the Company . The Company
represents and warrants to and agrees with the Underwriter
that:
(a) The Registration Statement has been declared
effective under the Act; no stop order of the Commission preventing
or suspending the use of the Base Prospectus, the Prospectus
Supplement or the Prospectus or the effectiveness of the
Registration Statement has been issued and no proceedings for such
purpose have been instituted or, to the Company’s knowledge,
are threatened by the Commission; the Registration Statement
complied when it became effective, complies and will comply, at the
time of purchase, in all material respects with the requirements of
the Act and the Base Prospectus complied, as of its date and at the
time of purchase, in all material respects, with the requirements
of the Act; the conditions to the use of Form S-3 in connection
with the offering and sale of the Shares as contemplated hereby
have been satisfied; the Registration Statement meets, and the
offering and sale of the Shares as contemplated hereby complies
with, the requirements of Rule 415(a)(1)(i) under the Act; the
Registration Statement did not, as of the time such Registration
Statement became effective, and at the time of purchase, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; at all times during the period
beginning with the execution of this Agreement and ending at the
time of purchase, the Disclosure Package does not and will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; the Prospectus will comply, as of the date that it is
filed with the Commission, the date of the Prospectus Supplement
and, as amended or supplemented, at all times during the period
beginning with the execution of this Agreement and ending on the
time of purchase, in all material respects, with the requirements
of the Act (including, without limitation, Section 10(a) of the
Act); the Prospectus, as of the date that it is filed with the
Commission, the date of the Prospectus Supplement and, as amended
or supplemented, at the time of purchase did not or will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided , however , that the Company
makes no representation or warranty with respect to any statement
contained in or omitted from the Registration Statement, the
Disclosure Package or the Prospectus in reliance upon and in
conformity with information concerning the Underwriter and
furnished in writing by or on behalf of the Underwriter to the
Company expressly for use therein; provided , further
, that if, at any time after the time of purchase, the Company is
obligated to prepare and furnish to the Underwriter an amendment or
supplement to the Prospectus under Section 5(g) of this Agreement
and so furnishes such amendment or supplement, then from and after
the time that such Prospectus as amended or supplemented is
furnished to the Underwriter in accordance with Section 5(g), the
term “Prospectus” shall be deemed to mean the
Prospectus as so amended or supplemented; each Incorporated
Document, at the time such document was filed with the Commission,
complied, in all material respects, with the requirements of the
Exchange Act and did not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(b) the Incorporated Documents, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Exchange Act, and none of such documents, when
they were filed with the Commission, contained an untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement and/or
the Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the
Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(c) prior to the execution of this Agreement,
neither the Company nor, to the knowledge of the Company, any
Selling Stockholder has, directly or indirectly, offered or sold
any Shares by means of any “prospectus” (within the
meaning of the Act) or used any “prospectus” (within
the meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the Base Prospectus and the
Permitted Free Writing Prospectuses, if any; neither the Company
nor, to the knowledge of the Company, any Selling Stockholder has,
directly or indirectly, prepared, used or referred to any Permitted
Free Writing Prospectus except in compliance with the applicable
provisions of Rules 164 and 433 under the Act; assuming that such
Permitted Free Writing Prospectus is so sent or given after the
Registration Statement was filed with the Commission (and after
such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), such
Permitted Free Writing Prospectus will be deemed to be a prospectus
permitted under Section 10(b) of the Act for purposes of Section
5(b)(1) of the Act; the conditions set forth in one or more of
subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the
Act are satisfied, and the registration statement relating to the
offering of the Shares contemplated hereby, as initially filed with
the Commission, includes a prospectus that, other than by reason of
Rule 433 or Rule 431 under the Act, satisfies the applicable
requirements of Section 10 of the Act; neither the Company nor the
Underwriter are disqualified, by reason of subsection (f) or (g) of
Rule 164 under the Act, from using, in connection with the offer
and sale of the Shares, “free writing prospectuses” (as
defined in Rule 405 under the Act) pursuant to Rules 164 and 433
under the Act; the Company is not an “ineligible
issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date set forth in Rule 164(h) under the
Act with respect to the offering of the Shares contemplated by the
Registration Statement;
(d) as of the date specified in the Incorporated
Documents, the Company had authorized and outstanding
capitalization as set forth in the Incorporated Documents; all of
the issued and outstanding shares of capital stock, including the
Common Stock and the Shares, of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable
federal and state securities laws and were not issued in violation
of any preemptive right, resale right, right of first refusal or
similar right;
(e) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware, with full corporate power and authority
to own, lease and operate its properties and conduct its business
as described in the Registration Statement and the Prospectus and
to execute and deliver this Agreement;
(f) the Company is duly qualified to do business as
a foreign corporation and is in good standing in each jurisdiction
where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure
to be so qualified and in good standing would not, individually or
in the aggregate, have a material adverse effect on the business,
properties, financial condition, results of operation or prospects
of the Company and the Subsidiaries (as hereinafter defined) taken
as a whole (a “Material Adverse Effect”);
(g) the Company has no subsidiaries other than those
listed in Exhibit 21.1 of the Company’s Annual Report on Form
10-K for the year ended December 31, 2005 and those listed on
Schedule C hereto (collectively, the
“Subsidiaries”); other than the capital stock of the
Subsidiaries and immaterial stock ownership stakes in several
publicly-traded companies, the Company does 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 firm, partnership, joint venture, association or other entity;
complete and correct copies of the certificates of incorporation
and the by-laws (or other similar organizational documents) of the
Company and the Subsidiaries and all amendments thereto have been
made available to you, and except as set forth in the exhibits to
the Registration Statement, no changes therein will be made
subsequent to the date hereof and prior to the time of purchase;
each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with the requisite corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement,
the Disclosure Package and the Prospectus; each Subsidiary is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such
qualification, except where the failure to be so qualified or in
good standing would not, individually or in the aggregate, have a
Material Adverse Effect; all of the outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and (except as
otherwise described in this Section 3(g) or as described in the
Prospectus) are owned, directly or indirectly, by the Company
subject to no security interest, other encumbrance or adverse
claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert
any obligation into shares of capital stock or ownership interests
in the Subsidiaries are outstanding;
(h) the Shares have been duly authorized and validly
issued and are fully paid and nonassessable, have been issued in
compliance with all applicable federal and state securities laws
and were not issued by the Company in violation of any statutory or
contractual preemptive right or any resale right, right of first
refusal or other similar rights;
(i) the capital stock of the Company, including the
Shares, shall conform in all material respects as of the time of
purchase, to the description thereof contained in the Registration
Statement, the Disclosure Package and the Prospectus and the
certificates evidencing the Shares are in due and proper form in
all material respects and the holders of the Shares will not be
subject to personal liability by reason of being such holders in
all material respects;
(j) this Agreement has been duly authorized,
executed and delivered by the Company;
(k) neither the Company nor any of the Subsidiaries
is in breach or violation of or in default under (nor has any event
occurred which with notice, lapse of time or both would result in
any breach of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) (i) its respective charter or
by-laws (or other similar organizational documents), or (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
properties may be bound or affected, except, with respect to clause
(ii), for such breaches, violations or defaults as would not have a
Material Adverse Effect, and the execution, delivery and
performance of this Agreement, the sale of the Shares and the
consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a
default under (nor constitute any event which with notice, lapse of
time or both would result in any breach of or constitute a default
under) (x) the charter or by-laws (or other similar organizational
documents) of the Company or any of the Subsidiaries, (y) any
indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, except for such
breaches, violations or defaults as would not have a Material
Adverse Effect, or (z) any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to
the Company or any of the Subsidiaries;
(l) no approval, authorization, consent or order of
or filing with any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency is required
in connection with the sale of the Shares or the consummation by
the Company of the transactions contemplated hereby other than
registration of the offer and sale of the Shares under the Act and
registration of the Shares under the Exchange Act, which has been
or will be effected, and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which
the Shares are being offered by the Underwriter or under the rules
and regulations of the NASD;
(m) except as set forth in the Registration
Statement and the Prospectus, and after giving effect to the
consummation of the offering, (i) no person has the right,
contractual or otherwise, to cause the Company to issue or sell to
it any shares of Common Stock or shares of any other capital stock
or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other
rights to purchase any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, and
(iii) no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and
sale of the Shares, in the case of each of the foregoing clauses
(i), (ii) and (iii), whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise; except as described in
the Base Prospectus, no person has the right, contractual or
otherwise, to cause the Company to register under the Act any
shares of Common Stock or shares of any other capital stock or
other equity interests of the Company, or to include any such
shares or interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise;
(n) each of the Company and the Subsidiaries has all
necessary licenses, authorizations, consents and approvals and has
made all necessary filings required under any applicable federal,
state, local or foreign law, regulation or rule, and has obtained
all necessary authorizations, consents and approvals from other
persons, in order to conduct its respective business except where
the failure to obtain such licenses, authorizations, consents and
approvals would not have a Material Adverse Effect; neither the
Company nor any of the Subsidiaries is in violation of, or in
default under, or has received written notice of any proceedings
relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries, except where
such violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse
Effect;
(o) all legal or governmental proceedings, affiliate
transactions, off-balance sheet transactions, contracts, licenses,
agreements, leases, documents, statutes or regulations of a
character required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required;
(p) except as described in the Disclosure Package,
there are no actions, suits, claims or proceedings pending or, to
the Company’s knowledge, threatened to which the Company or
any of the Subsidiaries or any of their respective directors or
officers is a party or of which any of their respective properties
is subject at law or in equity, before or by any federal, state,
local or foreign governmental or regulatory commission, board,
body, authority or agency, except any such action, suit, claim,
investigation or proceeding which would not result in a judgment,
decree or order having, individually or in the aggregate, a
Material Adverse Effect or preventing consummation of the
transactions contemplated hereby;
(q) based solely on information provided by
PricewaterhouseCoopers LLP (“PricewaterhouseCoopers”)
to the Company and the Company’s knowledge and belief,
PricewaterhouseCoopers, whose report on the consolidated financial
statements of the Company and the Subsidiaries is filed with the
Commission as part of the Registration Statement, is an independent
registered public accounting firm as required by the
Act;
(r) the audited financial statements of the Company
included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, together with
the related notes, present fairly, in all material respects, the
consolidated financial position of the Company and the Subsidiaries
as of the dates indicated and the consolidated results of
operations and cash flows of the Company and the Subsidiaries for
the periods specified and, except as otherwise set forth in the
Prospectus, have been prepared in compliance with the requirements
of the Act and in conformity with generally accepted accounting
principles in the United States of America applied on a consistent
basis during the periods involved; any pro forma financial
statements included in the Prospectus comply as to form in all
material respects with the applicable accounting requirements of
Regulation S-X of the Act; any pro forma financial statement or
data included or incorporated by reference in the Registration
Statement, the Disclosure Package or the Prospectus comply with the
applicable requirements of Regulation S-X of the Act, if any, and
the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used
therein are appropriate to give effect to the transactions or
circumstances described therein and the pro forma adjustments have
been properly applied to the historical amounts in the compilation
of those statements; the other financial and statistical data set
forth in the Registration Statement, the Disclosure Package and the
Prospectus, are accurately presented and prepared on a basis
consistent with the financial statements and books and records of
the Company; there are no financial statements (historical or pro
forma) that are required to be included in the Prospectus that are
not included as required; and the Company and the Subsidiaries do
not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus; and all disclosures contained in
the Registration Statement, the Disclosure Package or the
Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the
Commission) comply with Regulation G of the Exchange Act and Item
10 of Regulation S-K under the Act, to the extent
applicable;
(s) subsequent to the respective dates as of which
information is given or incorporated by reference in the Disclosure
Package, excluding any amendments or supplements to the foregoing
made after the execution of this Agreement, except as disclosed in
the Disclosure Package, there has not been (i) any material adverse
change, or any development involving a prospective material adverse
change, in the business, properties, financial condition or results
of operations of the Company and the Subsidiaries taken as a whole,
(ii) any transaction which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred
by the Company or the Subsidiaries, which is material to the
Company and the Subsidiaries taken as a whole, (iv) except as
described in or contemplated by the Disclosure Package, any change
in the capital stock or outstanding indebtedness of the Company or
the Subsidiaries or (v) except as described in or contemplated by
the Disclosure Package, any dividend or distribution of any kind
declared, paid or made on the capital stock of the
Company;
(t) the Company has obtained a lock-up agreement in
the form set forth as Exhibit A hereto (each, a
“Lock-Up Agreement”) from each director and executive
officer of the Company and from each of the Selling
Stockholders;
(u) the Company is not and, after giving effect to
the offering and sale of the Shares, will not be an
“investment company”, or to its knowledge, an entity
“controlled” by an entity required to register as an
“investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(v) the Company and each of the Subsidiaries has
good and marketable title to all property (real and personal)
described in the Registration Statement, the Disclosure Package and
the Prospectus as being owned by each of them, free and clear of
all liens, claims, security interests or other encumbrances except
as described in the Registration Statement, the Disclosure Package
or the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made or proposed to
be made of such property by the Company; all the property described
in the Registration Statement, the Disclosure Package and the
Prospectus as being held under lease by the Company or a Subsidiary
is held thereby under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the
use made or proposed to be made of such property and buildings by
the Company;
(w) except as described in the Registration
Statement or the Disclosure Package, (i) to the Company’s
knowledge, the Company and the Subsidiaries own, or have obtained
valid and enforceable licenses for, or other rights to use, the
inventions, patent applications, patents, trademarks (both
registered and unregistered), tradenames, copyrights, trade secrets
and other proprietary information described in the Registration
Statement and the Disclosure Package as being owned or licensed by
them, except where the failure to own, license or have such rights
would not, individually or in the aggregate, have a Material
Adverse Effect (collectively, “Intellectual Property”);
(ii) to the Company’s knowledge, there are no third parties
who have or will be able to establish rights to any Intellectual
Property, except for the ownership rights of the owners of the
Intellectual Property which is licensed to the Company and except
for ownership rights by third parties which would not, individually
or in the aggregate, result in a Material Adverse Effect; (iii) to
the Company’s knowledge, there is no infringement by third
parties of any Intellectual Property which is material to the
Company and which infringement would result in a Material Adverse
Effect; (iv) 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
which is material to the Company and which action, suit, proceeding
or claim would, if determined adversely to the Company, result in a
Material Adverse Effect; (v) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company infringes or otherwise violates
any patent, trademark, copyright, trade secret or other proprietary
rights of others which is material to the Company and which action,
suit, proceeding or claim would, if determined adversely to the
Company, result in a Material Adverse Effect; and (vi) to the
Company’s knowledge, there is no prior art that is known by
Company and which has not been disclosed to the U.S. Patent and
Trademark Office that may render any patent application relating to
any of the Intellectual Property owned by the Company
unpatentable;
(x) except for matters which would not, individually
or in the aggregate, have a Material Adverse Effect, (i) neither
the Company nor any of the Subsidiaries is engaged in any unfair
labor practice; (ii) there is (A) no unfair labor practice
complaint pending or, to the Company’s knowledge, threatened
against the Company or any of the Subsidiaries before the National
Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under collective bargaining agreements is pending
or, to the Company’s knowledge, threatened, (B) no strike,
labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company or any of
the Subsidiaries and (C) no union representation dispute currently
existing concerning the employees of the Company or any of the
Subsidiaries, and (iii) to the Company’s knowledge, (A) no
union organizing activities are currently taking place concerning
the employees of the Company or any of the Subsidiaries and (B)
there has been no violation of any applicable federal, state, local
or foreign law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws or any
provision of the Employee Retirement Income Security Act of 1974
(“ERISA”) or the rules and regulations promulgated
thereunder concerning the employees of the Company or any of the
Subsidiaries;
(y) the Company and the Subsidiaries and their
properties, assets and operations are in compliance with, and hold
all permits, authorizations and approvals required under,
Environmental Laws (as defined below), except to the extent that
failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a
Material Adverse Effect; there are no past, present or, to the
Company’s knowledge, reasonably anticipated future events,
conditions, circumstances, activities, practices, actions,
omissions or plans that could reasonably be expected to give rise
to any material costs or liabilities to the Company or the
Subsidiaries under, or to interfere with or prevent compliance by
the Company or the Subsidiaries with, Environmental Laws; except as
would not, individually or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of the Subsidiaries (i)
is, to the Company’s knowledge, the subject of any
investigation, (ii) has received any written notice or claim, (iii)
is a party to or affected by any pending or, to the Company’s
knowledge, threatened action, suit or proceeding, (iv) is bound by
any judgment, decree or order or (v) has entered into any
agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “Environmental Law”
means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit,
license, authorization or other binding requirement, or common law,
applicable to the Company which relates to health, safety or the
protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of
Hazardous Materials, and “Hazardous Materials” means
any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is
regulated by or may give rise to liability under any Environmental
Law);
(z) in the ordinary course of its business, the
Company and each of the Subsidiaries maintains procedures for
performing regular internal audits of each of its properties for
compliance with applicable Environmental Laws and ensuring
correction of any material incidents of non-compliance detected by
means of such audits;
(aa) all tax returns required to be filed by the
Company and each of the Subsidiaries (including any applicable
extensions) have been filed, and all taxes and other assessments of
a similar nature (whether imposed directly or through withholding)
including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which
adequate reserves have been provided and except where the failure
to file to such returns or to pay such taxes would not,
individually or in the aggregate, have a Material Adverse
Effect;
(bb) the Company and each of the Subsidiaries
maintains insurance covering its properties, operations, personnel
and businesses as the Company deems adequate; such insurance
insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect
the Company and the Subsidiaries and their businesses; all such
insurance is fully in force on the date hereof and will be fully in
force at the time of purchase;
(cc) neither the Company nor any of the Subsidiaries
has sustained since the date of the last audited financial
statements included in the Registration Statement and the
Prospectus any material loss or interference with their respective
businesses from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, other than as described in
the Registration Statement and the Prospectus;
(dd) the Company has not sent or received any
communication regarding termination of, or intent not to renew, any
of the material contracts or agreements filed as an exhibit to or
referred to or described in the Registration Statement, the
Disclosure Package, the Prospectus or any Incorporated Document and
no such termination or non-renewal has been threatened in writing
by the Company or, to the Company’s knowledge, any other
party to any such contract or agreement;
(ee) the Company and each of the Subsidiaries
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only
in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences;
(ff) the Company has established and maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15 and 15d-15 under the Exchange Act), which are designed to
ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others
within those entities, and such disclosure controls and procedures
are effective to perform the functions for which they were
established and have been evaluated for effectiveness as of the end
of the period covered by the Company’s most recent quarterly
report filed with the Commission. The Company’s independent
registered public accounting firm and the Audit Committee of the
Board of Directors have been advised of: (x) any significant
deficiencies in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and
report financial data; and (y) any fraud, whether or not material,
that involves management or other employees who have a role in the
Company’s internal control over financial reporting. The
principal executive officer and principal financial officer of the
Company have made all certifications required by Sections 302 and
906 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) and any related rules and regulations promulgated by
the Commission, and the statements contained in each such
certification are complete and correct;
(gg) the Company believes that the “material
weakness” and each of the “reportable conditions”
in the design and operation of internal controls as of December 27,
2003 identified in the letter dated June 8, 2004 from
PricewaterhouseCoopers to the Company has been remedied in all
material respects, and the Company has no reason to believe that
PricewaterhouseCoopers would not concur in its belief in this
regard;
(hh) the Company has provided you true, correct, and
complete copies of all documentation pertaining to any extension of
credit in the form of a personal loan made, directly or indirectly,
by the Company to any director or executive officer of the Company,
or to any family member or affiliate of any director or executive
officer of the Company; and since July 30, 2002, the Company has
not, directly or indirectly, including through any Subsidiary: (i)
extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any
director or executive officer of the Company, or to or for any
family member or affiliate of any director or executive officer of
the Company; or (ii) made any material modification, including any
renewal thereof, to any term of any personal loan to any director
or executive officer of the Company, or any family member or
affiliate of any director or executive officer, which loan was
outstanding on July 30, 2002;
(ii) any statistical and market-related data included
or incorporated by reference in the Registration Statement and the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained
the written consent to the use of such data from such sources to
the extent required;
(jj) neither the Company nor any of the Subsidiaries
nor, to the Company’s knowledge after due inquiry, any
employee or agent of the Company or the Subsidiaries has made any
payment of funds of the Company or the Subsidiaries or received or
retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character
required to be disclosed in the Registration Statement, the
Disclosure Package or the Prospectus;
(kk) neither the Company nor any of the Subsidiaries
nor, to the Company’s knowledge, any of their respective
directors, officers, affiliates or controlling persons has taken,
directly or indirectly, any action designed, or which has
constituted or could reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(ll) to the Company’s knowledge, based solely
upon Schedule 13D, Schedule 13G or other filings respecting the
Company by such persons with the Commission and upon completed
questionnaires, 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, the Disclosure Package and the
Prospectus;
In addition, any certificate signed by any
officer of the Company or any of the Subsidiaries and delivered to
the Underwriter or counsel for the Underwriter in connection with
the offering of the Shares shall be deemed to be a representation
and warranty by the Company or such Subsidiary, as the case may be,
as to matters covered thereby, to the Underwriter.
4.
Representations and Warranties of
the Selling Stockholders . Each Selling Stockholder, severally and not
jointly, represents and warrants to the Underwriter
that:
(a) such Selling Stockholder now is and at the time
of delivery of the Shares to be sold by it will be, the lawful
beneficial owner of the number of Shares to be sold by such Selling
Stockholder pursuant to this Agreement and has and, at the time of
delivery thereof, will have valid and marketable title to such
Shares, and upon delivery of and payment for such Shares, the
Underwriter will acquire valid and marketable title to such Shares
free and clear of any claim, lien, encumbrance, security interest,
community property right, restriction on transfer or other defect
in title;
(b) such Selling Stockholder has and at the time of
delivery of such Shares will have, full legal right, power and
capacity, and any approval required by law (other than those
imposed by the Act and the securities or blue sky laws of certain
jurisdictions), to sell, assign, transfer and deliver such Shares
in the manner provided in this Agreement;
(c) this Agreement, the Power-of-Attorney, the
Custody Agreement among the Custodian and the Selling Stockholders
(the “Custody Agreement”) and a Lock-Up Agreement have
each been duly executed and delivered by or on behalf of such
Selling Stockholder and each of the Custody Agreement (assuming due
authorization, execution and delivery by the Custodian), the
Power-of-Attorney and Lock-Up Agreement is a legal, valid and
binding agreement of such Selling Stockholder enforceable in
accordance with its terms; subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles;
(d) the sale of the Shares to be sold by such
Selling Stockholder hereunder and the compliance by such Selling
Stockholder with all of the provisions of this Agreement, the
Power-of-Attorney and the Custody Agreement and the consummation by
such Selling Stockholder of the transactions contemplated hereby
and thereby (i) will not conflict with, or result in any breach of
or constitute a default under (nor constitute any event which, with
notice, lapse of time, or both, would result in any breach of, or
constitute a default under), (x) if such Selling Stockholder is not
a natural person, its charter, by-laws or other organizational
documents, (y) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder
or such Selling Stockholder’s properties may be bound or
affected and which is material to such Selling Stockholder or which
is material to the transactions contemplated by this Agreement or
(z) under any federal, state, local or foreign law, regulation or
rule in any decree, judgment or order applicable to such Selling
Stockholder, and (ii) such sale can not be matched with a
corresponding purchase prior to the time of purchase, for purposes
of, and as determined pursuant to, Section 16(b) of the Exchange
Act;
(e) the Shares represented by the certificates held
in custody for such Selling Stockholder under the Custody Agreement
are subject to the interests of the Underwriter hereunder; the
arrangements made by such Selling Stockholder for such custody, and
the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power-of-Attorney, are to that extent
irrevocable; the obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the death
or incapacity of such Selling Stockholder or, in the case of an
estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case
of a partnership, corporation or other entity, by the dissolution
of liquidation of such partnership, corporation or other entity, or
by the occurrence of any other event; if any individual Selling
Stockholder or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be terminated,
or if any such partnership, corporation or other entity should be
dissolved or liquidated, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates
representing the Shares to be sold by such Selling Stockholder
shall be delivered by or on behalf of such Selling Stockholder in
accordance with the terms and conditions of this Agreement and the
Custody Agreement;
(f) in respect of any statements in or omissions
from the Registration Statement, the Disclosure Package, the
Prospectus or any amendment or supplement thereto made in reliance
upon and in conformity with written information furnished to the
Company by such Selling Stockholder expressly and specifically for
use therein (it being understood and agreed that the only such
information furnished to the Company by any such Selling
Stockholder consists of the information described in Section 11(b)
of this Agreement) (“Selling Stockholder Information”),
(i) the Registration Statement did not when it became effective,
does not and will not, at the time of purchase, contain an untrue
statement of a material fact concerning such Selling
Stockholder’s Selling Stockholder Information or omit to
state a material fact concerning such Selling Stockholder’s
Selling Stockholder Information required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Disclosure Package distributed in connection with the offering of
the Shares did not, as of its date, and does not contain an untrue
statement of a material fact concerning such Selling
Stockholder’s Selling Stockholder Information or omit to
state a material fact concerning such Selling Stockholder’s
Selling Stockholder Information required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (iii)
the Prospectus will not, as of its date and at the time of
purchase, contain an untrue statement of a material fact concerning
such Selling Stockholder’s Selling Stockholder Information or
omit to state a material fact concerning such Selling
Stockholder’s Selling Stockholder Information required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(g) such Selling Stockholder has duly and
irrevocably authorized the Attorneys-in-Fact of the Selling
Stockholders, on behalf of such Selling Stockholder, to execute and
deliver this Agreement and any other document necessary or
desirable in connection with the transactions contemplated thereby
and to deliver the Shares to be sold by such Selling Stockholder
and receive payment therefor pursuant hereto;
(h) such Selling Stockholder has not taken, directly
or indirectly, any action designed, or which has constituted or
could reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Shares;
(i) the sale of the Shares pursuant to this
Agreement is not prompted by any information concerning the Company
which is not set forth in the Registration Statement or the
Disclosure Package; and
(j) such Selling Stockholder acquired the Shares
being sold by such Selling Stockholder as set forth under
“Selling Stockholders” in the Base
Prospectus.
5.
Certain Covenants of the Company
and Selling Stockholders . The Company, and, with respect to clause (g)
only, each Selling Stockholder, severally and not jointly, hereby
agrees:
(a) to furnish such information as may be required
and otherwise to cooperate in qualifying the Shares for offering
and sale under the securities or blue sky laws of such states or
other jurisdictions as you may designate and to maintain such
qualifications in effect so long as you may request for the
distribution of the Shares; provided that the Company shall
not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of
the Shares); and to promptly advise you of the receipt by the
Company of any notification with respect
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