2.25% Convertible Senior Notes due
2026
UBS Securities
LLC
as Managing Underwriter
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171
Diodes
Incorporated, a Delaware corporation (the “Company”),
proposes to issue and sell to the underwriters named in
Schedule A annexed hereto (the “Underwriters”) for
whom you are acting as representative, $200,000,000 aggregate
principal amount of the Company’s 2.25% Convertible Senior
Notes due 2026 (such principal amount, the “Firm
Notes”) to be issued pursuant to the provisions of an
indenture to be dated as of October 12, 2006 (the
“Indenture” and collectively with this Agreement and
the Notes, the “Transaction Documents”) between the
Company and Union Bank of California, N.A., as trustee. In
addition, solely for the purpose of covering over-allotments, the
Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional $30,0000,000 of
aggregate principal amount of Notes (the “Additional
Notes”). The Firm Notes and the Additional Notes are
hereinafter collectively sometimes referred to as the
“Notes.” The Notes are described in the Prospectus
which is referred to below.
The
Notes will be convertible into shares of common stock of the
Company, $0.66⅔ par value per share (“Common
Stock”). The shares of Common Stock into which the Notes may
be converted are referred to herein as the “Underlying
Securities.”
The
Company has prepared and filed, in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the “Act”), with
the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(File No. 333-137803) under the Act (the “registration
statement”) including a prospectus, which registration
statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the “Exchange
Act”). Such registration statement has become effective under
the Act.
Except
where the context otherwise requires, “Registration
Statement,” as used herein, means the registration statement,
as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Act, as such
section applies to the respective Underwriters (the
“Effective Time”), including (i) all documents
filed as a part thereof or incorporated or deemed to be
incorporated by reference therein, (ii) any information
contained or
1
incorporated by
reference in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information is
deemed, pursuant to Rule 430A, Rule 430B or Rule 430C
under the Act, to be part of the registration statement at the
Effective Time, and (iii) any registration statement filed to
register the offer and sale of Notes pursuant to Rule 462(b) under
the Act. The Company has furnished to you, for use by the
Underwriters and by dealers in connection with the offering of the
Notes, copies of one or more preliminary prospectuses, and the
documents incorporated by reference therein, relating to the Notes.
Except where the context otherwise requires, “Pre-Pricing
Prospectus,” as used herein, means each such preliminary
prospectus, in the form so furnished.
Except
where the context otherwise requires, “Prospectus,” as
used herein, means the final prospectus, relating to the Notes,
filed by the Company with the Commission pursuant to Rule 424(b)
under the Act on or before the second business day after the date
hereof (or such earlier time as may be required under the Act), in
the form furnished by the Company to you for use by the
Underwriters and by dealers in connection with the offering of the
Notes.
“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 Notes contemplated hereby that is a
“written communication” (as defined in Rule 405 under
the Act). The Underwriters have not offered or sold and will not
offer or sell, without the Company’s consent, any Notes by
means of any “free writing prospectus” (as defined in
Rule 405 under the Act) that is required to be filed by the
Underwriters with the Commission pursuant to Rule 433 under
the Act, other than a Permitted Free Writing Prospectus.
“Disclosure
Package,” as used herein, means any Pre-Pricing Prospectus
together with any combination of one or more of the Permitted Free
Writing Prospectuses, if any.
Any
reference herein to the registration statement, the Registration
Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein (the “Incorporated
Documents”), including, unless the context otherwise
requires, the documents, if any, filed as exhibits to such
Incorporated Documents. Any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act on or
after the initial effective date of the Registration Statement, or
the date of such Pre-Pricing Prospectus, the Prospectus or such
Permitted Free Writing Prospectus, as the case may be, and deemed
to be incorporated therein by reference.
As
used in this Agreement, “business day” shall mean a day
on which the NASDAQ National Market (the “NASDAQ”) is
open for trading. The terms “herein,”
“hereof,” “hereto,”
“hereinafter” and similar terms, as used in this
Agreement, shall in each case refer to this Agreement as a whole
and not to any particular section, paragraph, sentence or other
subdivision of this Agreement. The term “or,” as used
herein, is not exclusive.
The
Company and the Underwriters agree as follows:
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1.
Sale and Purchase . Upon the basis of the representations
and warranties and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to the respective
Underwriters and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company principal amount of
Firm Notes set forth opposite the name of such Underwriter in
Schedule A attached hereto, subject to adjustment in
accordance with Section 8 hereof, in each case at a purchase
price of 97.375% of the principal amount thereof, plus accrued
interest (if any) to the time of purchase (as defined below). The
Company is advised by you that the Underwriters intend (i) to
make a public offering of their respective portions of the Firm
Notes as soon after the effectiveness of this Agreement as in your
judgment is advisable and (ii) initially to offer the Firm
Notes upon the terms set forth in the Prospectus. You may from time
to time increase or decrease the public offering price after the
initial public offering to such extent as you may
determine.
In
addition, the Company hereby grants to the several Underwriters the
option (the “Over-Allotment Option”) to purchase, and
upon the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the
Company, ratably in accordance with the aggregate principal amount
of Firm Notes to be purchased by each of them, all or a portion of
the Additional Notes as may be necessary to cover over-allotments
made in connection with the offering of the Firm Notes, at the same
purchase price (expressed as a percentage of the principal amount)
to be paid by the Underwriters to the Company for the Firm Notes.
The Over-Allotment Option may be exercised by UBS Securities LLC
(“UBS”) on behalf of the several Underwriters at any
time and from time to time ( provided that the Additional
Notes shall be issued on or before the thirteenth (13th) day
beginning with, and including, the date of original issuance of the
Firm Notes) by written notice to the Company. Such notice shall set
forth the aggregate principal amount of Additional Notes as to
which the Over-Allotment Option is being exercised, and the date
and time when the Additional Notes are to be delivered (any such
date and time being herein referred to as an “additional time
of purchase”); provided , however , that no
additional time of purchase shall be earlier than the time of
purchase (as defined below) nor earlier than the second business
day after the date on which the Over-Allotment Option shall have
been exercised nor later than the tenth business day after the date
on which the Over-Allotment Option shall have been exercised and
the Additional Notes shall have been issued within the
aforementioned period. The principal amount of Additional Notes to
be sold to each Underwriter shall be the principal amount which
bears the same proportion to the aggregate principal amount of
Additional Notes being purchased as the principal amount of Firm
Notes set forth opposite the name of such Underwriter on
Schedule A hereto bears to the aggregate principal amount of
Firm Notes, subject to adjustment in accordance with Section 8
hereof.
2.
Payment and Delivery . Payment of the purchase price for the
Firm Notes shall be made to the Company by Federal Funds wire
transfer, against delivery of the certificates for the Firm Notes
to you through the facilities of The Depository Trust Company
(“DTC”) for the respective accounts of the
Underwriters. Such payment and delivery shall be made at
10:00 A.M., New York City time, on October 12, 2006 (the
“Closing Date”) (unless another time shall be agreed to
by you and the Company or unless postponed in accordance with the
provisions of Section 8 hereof). The time at which such
payment and delivery are to be made is hereinafter sometimes called
the “time of purchase.” Electronic transfer of the Firm
Notes shall be made to you at the time of purchase in such names
and in such denominations as you shall specify.
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Payment
of the purchase price for the Additional Notes shall be made at the
additional time of purchase in the same manner and at the same
office as the payment for the Firm Notes. Electronic transfer of
the Additional Notes shall be made to you at the additional time of
purchase in such names and in such denominations as you shall
specify.
Certificates
for the Notes shall be in definitive form or global form, as
specified by you, and registered in the names and in such
denominations as you shall request in writing not later than one
full business day prior to the time of purchase or the additional
time of purchase, as the case may be. For the purpose of expediting
the checking of the certificates for the Notes by you, the Company
agrees to make such certificates available to you for such purpose
at least one full business day preceding the time of purchase or
the additional time of purchase, as the case may be.
Deliveries
of the documents described in Section 6 hereof with respect to
the purchase of the Notes shall be made at the offices of Simpson
Thacher & Bartlett LLP, Underwriters’ counsel at the
address of its Palo Alto office, at or prior to 9:00 A.M., New York
City time, on the date of the closing of the purchase of the Firm
Notes or the Additional Notes, as the case may be.
3.
Representations and Warranties of the Company . The Company
represents and warrants to and agrees with each of the Underwriters
that:
(a)
the Registration Statement has heretofore become effective under
the Act or, with respect to any registration statement to be filed
to register the offer and sale of Notes pursuant to Rule 462(b)
under the Act, will be filed with the Commission and become
effective under the Act no later than 10:00 P.M., New York
City time, on the date of determination of the public offering
price for the Notes; no stop order of the Commission preventing or
suspending the use of any Pre-Pricing Prospectus, the Prospectus or
any Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for
such purpose have been instituted or, to the Company’s
knowledge, are contemplated by the Commission;
(b)
the Registration Statement complied when it became effective,
complies as of the date hereof and, as amended or supplemented, at
the time of purchase, each additional time of purchase, if any, and
at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Notes, will comply, in all material respects, with the
requirements of the Act; the conditions to the use of Form S-3 in
connection with the offering and sale of the Notes as contemplated
hereby have been satisfied; the Registration Statement constitutes
an “automatic shelf registration statement” (as defined
in Rule 405 under the Act); the Company has not received, from
the Commission, a notice, pursuant to Rule 401(g)(2), of
objection to the use of the automatic shelf registration statement
form; as of the determination date applicable to the Registration
Statement (and any amendment thereof) and the offering contemplated
hereby, the Company is a “well-known seasoned issuer”
as defined in Rule 405 under the Act; the Registration
Statement meets, and the offering and sale of the Notes as
contemplated hereby complies with, the requirements of
Rule 415 under the Act
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(including,
without limitation, Rule 415(a)(5) under the Act); the
Registration Statement did not, as of the Effective Time, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; each Pre-Pricing Prospectus
complied, at the time it was filed with the Commission, and
complies as of the date hereof, in all material respects with the
requirements of the Act; at no time during the period that begins
on the earlier of the date of such Pre-Pricing Prospectus and the
date such Pre-Pricing Prospectus was filed with the Commission and
ends at the time of purchase did or will any Pre-Pricing
Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and
at no time during such period did or will any Pre-Pricing
Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, 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 complied
or will comply, as of its date and the date it was or will be filed
with the Commission, complies as of the date hereof (if filed with
the Commission on or prior to the date hereof) and, at the time of
purchase, each additional time of purchase, if any, and at all
times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Notes, will comply, in all material respects, with the
requirements of the Act (including, without limitation, Section
10(a) of the Act); at no time during the period that begins on the
earlier of the date of the Prospectus and the date the Prospectus
is filed with the Commission and ends at the later of the time of
purchase, the latest additional time of purchase, if any, and the
end of the period during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Notes did or will the Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; at no time during the period that
begins on the date of any Permitted Free Writing Prospectus and
ends at the time of purchase did or will such Permitted Free
Writing Prospectus include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided , however ,
that the Company makes no representation or warranty in this
Section 3(b) with respect to any statement contained in the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus
or any Permitted Free Writing Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished
in writing by or on behalf of such Underwriter through you to the
Company expressly for use in the Registration Statement, such
Pre-Pricing Prospectus, the Prospectus or such Permitted Free
Writing Prospectus; each Incorporated Document, at the time such
document was filed with the Commission or at the time such document
became effective, as applicable, complied, in all material
respects, with the requirements of the Exchange Act and did not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to
5
make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(c)
prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Notes 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 Notes, in each case other
than the Pre-Pricing Prospectuses and the Permitted Free Writing
Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus
except in compliance with Rule 163 or with Rules 164 and
433 under the Act; assuming that such Permitted Free Writing
Prospectus is so sent or given after the Registration Statement was
filed with the Commission (and after such Permitted Free Writing
Prospectus was, if required pursuant to Rule 433(d) under the Act,
filed with the Commission), the sending or giving, by any
Underwriter, of any Permitted Free Writing Prospectus will satisfy
the provisions of Rule 164 and Rule 433 (without reliance on
subsections (b), (c) and (d) of Rule 164); the
conditions set forth in one or more of subclauses (i) through
(iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and
the registration statement relating to the offering of the Notes
contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433
or Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the
Underwriters 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 Notes, “free writing
prospectuses” (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Company is
not an “ineligible issuer” (as defined in Rule 405
under the Act) as of the eligibility determination date for
purposes of Rules 164 and 433 under the Act with respect to
the offering of the Notes contemplated by the Registration
Statement; the parties hereto agree and understand that the content
of any and all “road shows” (as defined in
Rule 433 under the Act) related to the offering of the Notes
contemplated hereby is solely the property of the
Company;
(d)
as of the date of this Agreement, the Company has an authorized and
outstanding capitalization as set forth under the heading
“Actual” in the section of the Registration Statement,
the Pre-Pricing Prospectuses and the Prospectus entitled
“Capitalization” and in the section of the Registration
Statement, the Pre-Pricing Prospectuses and the Prospectus entitled
“Description of capital stock” (and any similar
sections or information, if any, contained in any Permitted Free
Writing Prospectus) and, as of the time of purchase and any
additional time of purchase, as the case may be, the Company shall
have an authorized and outstanding capitalization as set forth
under the heading “As Adjusted” in the section of the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus entitled “Capitalization” and in the section
of the Registration Statement, the Pre-Pricing Prospectuses and the
Prospectus entitled “Description of capital stock” and
any similar sections or information, if any, contained in any
Permitted Free Writing Prospectus) (subject, in each case, to the
issuance of shares of Common Stock upon exercise of stock options
disclosed as outstanding in the Registration Statement (excluding
the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus and the grant of employee stock options and other awards
under the Company’s existing equity incentive compensation
plans described in the Registration
6
Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and
the Prospectus); all of the issued and outstanding shares of
capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any statutory
or contractual preemptive right, resale right, right of first
refusal or similar right (including, without limitation, any such
rights in the Company’s certificate of incorporation or
bylaws);
(e)
since the date on which the Company’s predecessor
(“Diodes California”) was originally incorporated in
California, and since the date of the Company’s
reincorporation as a Delaware corporation, no person has claimed to
be a holder of shares of the Company or of Diodes California, or
has presented a certificate representing shares of the Company or
of Diodes California, which shares the Company or Diodes
California, as applicable, had no records of being issued, which
shares could not be accounted for by the Company or by Diodes
California, as applicable, or which shares could not be reconciled
as being part of then stated outstanding share capital of the
Company or Diodes California, as applicable, as of the date of such
claim or presentation of such certificate;
(f)
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 corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, to
execute and deliver this Agreement and the Indenture, to issue,
sell and deliver the Notes and to issue and deliver the Underlying
Securities initially issuable upon conversion of the Notes as
contemplated herein;
(g)
the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to
be so qualified and in good standing would not, individually or in
the aggregate, (i) have a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and the Subsidiaries (as hereinafter
defined) taken as a whole, (ii) prevent or materially
interfere with consummation of the transactions contemplated hereby
or (iii) result in the delisting of shares of Common Stock
from the Nasdaq Global Select Market (the “NASDAQ”)
(the occurrence of any such effect or any such prevention or
interference or any such result described in the foregoing clauses
(i), (ii) and (iii) being herein referred to as (a
“Material Adverse Effect”);
(h)
the Company has no subsidiaries (as defined in the Exchange Act)
other than the subsidiaries listed on Schedule C hereto
(collectively, the “Subsidiaries”); the Company owns
the percentage of the issued and outstanding capital stock
specified on Schedule C hereto of each of the Subsidiaries;
other than the capital stock of the Subsidiaries, the Company does
not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities of any corporation or have any
equity interest in
7
any firm,
partnership, joint venture, association or other entity; complete
and correct copies of the certificates of incorporation and the
by-laws (or equivalent constitutive documents) of the Company and
the Subsidiaries and all amendments thereto have been delivered to
you, and no changes therein will be made on or after the date
hereof through and including the time of purchase of the Notes or,
if later, any additional time of purchase of the Notes; each
Subsidiary has been duly incorporated or formed and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation or organization, with corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement,
the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any; 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 and 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, have been issued in compliance with
all applicable securities laws, were not issued in violation of any
statutory or contractual preemptive right, right of first refusal
or similar right (including, without limitation, any such rights in
any Subsidiary’s certificate of incorporation or bylaws (or
equivalent constitutive documents)) and the percentages of such
shares reflected on Schedule C are owned 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;
(i)
the Company and each of its Subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as
presently conducted;
(j)
the execution and delivery of, and the performance by the Company
of its obligations under, the Indenture have been duly and validly
authorized by all necessary corporate action on the part of the
Company and, when executed and delivered by the Company, the
Indenture will have been duly executed and delivered by the Company
and, assuming due execution by the Trustee, will constitute the
valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar
laws affecting creditors’ rights generally and by general
principles of equity (regardless of whether enforcement is sought
in equity or at law); on the Closing Date, the Indenture will
conform to the requirements of the Trust Indenture Act of 1939, as
amended (the “TIA”), applicable to an indenture that is
required to be qualified by the TIA;
(k)
the Notes have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture and issued and
delivered against payment of the purchase price therefor as
provided herein and in the Indenture, (i) will be validly
executed,
8
authenticated,
issued and delivered and will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfer),
reorganization, moratorium or other similar laws affecting
creditors’ rights generally and by general principles of
equity (regardless of whether enforcement is sought in equity or at
law), (ii) will be entitled to the benefits of the Indenture,
and (iii) will be convertible into Common Stock in accordance
with the Indenture; the Underlying Securities initially issuable
upon conversion of the Notes in accordance with the Indenture and
the Notes have been duly authorized and reserved for issuance, are
sufficient in number to meet the current conversion requirements
and when issued and delivered upon conversion of the Notes in
accordance with the Indenture, will be duly and validly issued,
fully paid and non-assessable and free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and
similar rights; the certificates for the Notes are in due and
proper form;
(l)
the Indenture, the Notes and the capital stock of the Company,
including the Underlying Securities conform in all material
respects to the respective descriptions thereof contained or
incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any;
(m)
this Agreement has been duly authorized, executed and delivered by
the Company;
(n)
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) its (i) respective certificate of
incorporation or by-laws (or equivalent constitutive documents),
(ii) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, (iii) 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,
(iv) any federal, state, local or foreign law, regulation or
rule, (v) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of the
NASDAQ), or (vi) any decree, judgment or order applicable to
the Company or any of the Subsidiaries, except for, in the case of
clauses (ii), (iii), (iv), (v) or (vi) above, any breach,
violation or default which would not, individually or in the
aggregate, have a Material Adverse Effect;
(o)
the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated
thereby, including the issuance and sale of the Notes and the
issuance of the Underlying Securities upon conversion of the Notes,
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 or give the holder of any
9
indebtedness
(or a person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (or result in the creation or imposition
of a lien, charge or encumbrance on any property or assets of the
Company or any Subsidiary pursuant to) (i) the certificate of
incorporation or by-laws (or equivalent constitutive documents) of
the Company or any of the Subsidiaries, (ii) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, (iii) 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 or assets may be bound or affected,
(iv) any federal, state, local or foreign law, regulation or
rule, (v) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of the
NASDAQ) or (vi) or any decree, judgment or order applicable to
the Company or any of the Subsidiaries or any of their respective
properties or assets, except in the case of (ii) and
(iii) for such occurrences that could not, individually or in
the aggregate, have a Material Adverse Effect;
(p)
no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency or of or with any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the NASDAQ), or approval
of the shareholders of the Company, is required in connection with
the issuance and sale of the Notes or the consummation by the
Company of the transactions contemplated by the Transaction
Documents, other than (i) registration of the offer and sale of the
Notes and the Underlying Securities under the Act, which has been
effected, (ii) qualification of the Indenture under the TIA,
which has been effected, (iii) any necessary qualification
under the securities or blue sky laws of the various jurisdictions
in which the Notes are being offered by the Underwriters or
(iv) under the rules and regulations of the National
Association of Securities Dealers, Inc. (the
“NASD”);
(q)
except as set forth in the Registration Statement (excluding the
exhibits thereto), each Pre-Pricing Prospectus and the Prospectus,
(i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any Notes or 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 Notes or 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 Notes; no person has the right, contractual or
otherwise, to cause the Company to register under the Act any
shares of Common Stock or shares of any other capital stock of or
other equity interests or securities of the Company, or to include
any such shares or interests or securities in the Registration
Statement or the offering contemplated thereby;
(r)
each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary
licenses, authorizations, consents and approvals from other
persons, in order
10
to conduct its
respective business, except where the failure to do so would not,
individually or in the aggregate, have a Material Adverse Effect;
neither the Company nor any of the Subsidiaries is in violation of,
or in default under, or has received notice of any proceedings
relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries, except where
such violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse
Effect;
(s)
all legal or governmental proceedings, affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements,
leases or documents of a character required to be described in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus or the Permitted Free Writing Prospectuses, if any, or
to be filed as an exhibit to the Registration Statement have been
so described or filed as required;
(t)
there are no actions, suits, claims, investigations or proceedings
pending or threatened or, to the Company’s knowledge,
contemplated to which the Company or any of the Subsidiaries or any
of their respective directors or officers in their capacities as
such is a party or to 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, or before or by any self-regulatory
organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), 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;
(u)
Moss Adams LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries is included or
incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus, are independent public
accountants as required by the Act and by the rules of the Public
Company Accounting Oversight Board;
(v)
the audited financial statements included or incorporated by
reference into the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, together with the related notes and
schedules, present fairly the consolidated financial position of
the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows and changes in
stockholders’ equity of the Company and the Subsidiaries for
the periods specified and have been prepared in compliance with the
requirements of the Act and the Exchange Act and in conformity with
United States generally accepted accounting principles applied on a
consistent basis during the periods involved; any financial
information included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, not
prepared in accordance with United States generally accepted
accounting principles complies with the requirements of
Regulation G of the Exchange Act; the other financial and
statistical data set forth or incorporated by reference in
the
11
Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, 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 Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, 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
(excluding the exhibits thereto), the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if
any;
(w)
subsequent to the respective dates as of which information is given
in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, in
each case excluding any amendments or supplements to the foregoing
made after the execution of this Agreement, there has not been
(i) any material adverse change, or any development involving
a prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole, (ii) any
transaction which is material to the Company and the Subsidiaries
taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred
by the Company or the Subsidiaries, which is material to the
Company and the Subsidiaries taken as a whole, (iv) any change in
the capital stock or outstanding indebtedness of the Company or the
Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any
Subsidiary;
(x)
the Company has obtained for the benefit of the Underwriters the
agreement (a “Lock-Up Agreement”), substantially in the
form set forth as Exhibit A hereto, of each of its
directors and officers and Lite-On Semiconductor Corporation, a
corporation organized under the laws of Taiwan;
(y)
the Company is not, and at no time during which a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Notes will be, and, after giving effect
to the offering and sale of the Notes and the application of the
proceeds thereof as described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, will not be an “investment
company,” as such term is defined in the Investment Company
Act of 1940, as amended (the “Investment Company
Act”);
(z)
the Company and each of the Subsidiaries has good and marketable
title to all property (real and personal) described in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, 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 Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any; all
the property described in the Registration Statement, the
Pre-
12
Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being held under lease by the Company or a
Subsidiary is held thereby under valid, subsisting and enforceable
leases;
(aa)
(i) 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, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, as being owned or
licensed by them or which are necessary for the conduct of their
respective businesses, 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) there are no third parties who have or,
to the Company’s knowledge, will be able to establish rights
to any Intellectual Property, except for the ownership rights of
the owners of the Intellectual Property which is licensed to the
Company; (iii) there is no infringement by third parties of
any Intellectual Property; (iv) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the Company’s rights in or to any
Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such action, suit,
proceeding or claim; (v) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any
Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such action, suit,
proceeding or claim; (vi) 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, tradename, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any
facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (vii) there is no patent or patent
application that contains claims that interfere with the issued or
pending claims of any of the Intellectual Property; and
(viii) there is no prior art that may render any patent
application owned by the Company of the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office;
(bb)
neither the Company nor any of the Subsidiaries is engaged in any
unfair labor practice; except for matters which would not,
individually or in the aggregate, have a Material Adverse Effect,
(i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against
the Company or any of the Subsidiaries before the National Labor
Relations Board, and no grievance or arbitration proceeding arising
out of or under collective bargaining agreements is pending or, to
the Company’s knowledge, threatened, (B) no strike,
labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company or any of
the Subsidiaries and (C) no union representation dispute
currently existing concerning the employees of the Company or any
of the Subsidiaries, and (ii) 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
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
13
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;
(cc)
the Company and the Subsidiaries and their properties, assets and
operations are in compliance with, and the Company and the
Subsidiaries hold all permits, authorizations and approvals
required under, Environmental Laws (as defined below), except to
the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the
aggregate, have a Material Adverse Effect; 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 the subject of any investigation,
(ii) has received any notice or claim, (iii) is a party
to or, to the Company’s knowledge, affected by any pending or
threatened action, suit or proceeding, (iv) is bound by any
judgment, decree or order or (v) has entered into any
agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “Environmental Law”
means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit,
license, authorization or other binding requirement, or common law,
relating to health, safety or the protection, cleanup or
restoration of the environment or natural resources, including
those relating to the distribution, processing, generation,
treatment, storage, disposal, transportation, other handling or
release or threatened release of Hazardous Materials, and
“Hazardous Materials” means any material (including,
without limitation, pollutants, contaminants, hazardous or toxic
substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law);
(dd)
in the ordinary course of its business, the Company and each of the
Subsidiaries conducts a periodic review of the effect of the
Environmental Laws on its business, operations and properties, in
the course of which it identifies and evaluates associated costs
and liabilities (including, without limitation, any capital or
operating expenditures required for cleanup, closure of properties
or compliance with the Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties);
(ee)
there are no transfer taxes or other similar fees or charges under
U.S. federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance, sale or
delivery by the Company of the Notes or the issuance or delivery of
the Underlying Shares upon conversion of the Notes;
(ff)
all tax returns required to be filed by the Company and each of the
Subsidiaries have been filed, and all taxes and other assessments
of a similar nature
14
(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 (i) those
being contested in good faith and for which adequate reserves have
been provided on the books and records of the Company and its
Subsidiaries or (ii) where such failure to file or pay would not,
individually or in the aggregate, have a Material Adverse
Effect;
(gg)
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 and any additional time of purchase;
(hh)
neither the Company nor any of the Subsidiaries has sustained since
the date of the last audited financial statements included or
incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, any material loss or interference
with its respective business 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;
(ii)
neither the Company nor any Subsidiary has sent or received any
communication regarding termination of, or intent not to renew, any
of the contracts or agreements referred to or described in any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus, or referred to or described in, or filed as an
exhibit to, the Registration Statement or any Incorporated
Document, and no such termination or non-renewal has been
threatened by the Company or any Subsidiary, to the Company’s
knowledge, any other party to any such contract or
agreement;
(jj)
the Company and each of the Subsidiaries makes and keeps accurate
books and records and 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;
(kk)
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); such disclosure controls and procedures
are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to
the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for
which they were established; the Company’s independent
auditors and the
15
Audit Committee
of the Board of Directors have been advised of: (i) any
significant deficiencies in the design or operation of internal
controls which could adversely affect the Company’s ability
to record, process, summarize, and report financial data; and
(ii) any fraud, whether or not material, that involves
management or other employees who have a role in the
Company’s internal controls; any material weaknesses in
internal controls have been identified for the Company’s
independent auditors; and since the date of the most recent
evaluation of such disclosure controls and procedures, there have
been no significant changes in internal controls or in other
factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses;
(ll)
each “forward-looking statement” (within the meaning of
Section 27A of the Act or Section 21E of the Exchange
Act) contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, has been made or
reaffirmed with a reasonable basis and in good faith;
(mm)
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;
(nn)
there is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities
as such, to comply with any provision of the Sarbanes-Oxley Act of
2002, as amended, and the rules and regulations promulgated in
connection therewith that are applicable to them or the rules of
the NASDAQ that would have a Material Adverse Effect;
(oo)
any statistical and market-related data included or incorporated by
reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, 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;
(pp)
neither the Company nor any of the Subsidiaries nor, to the
Company’s knowledge, 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, including, without limitation, the
Foreign Corrupt Practices Act of 1977, as amended;
16
(qq)
the operations of the Company and its Subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and
no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its Subsidiaries with respect to the Money
Laundering Laws is pending or, to the Company’s knowledge,
threatened;
(rr)
neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its Subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering of the Notes
contemplated hereby, or lend, contribute or otherwise make
available such proceeds to any Subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC;
(ss)
no Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such Subsidiary’s capital stock, from
repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other
Subsidiary of the Company, except as described in the Registration
Statement (excluding the exhibits thereto), each Pre-Pricing
Prospectus and the Prospectus;
(tt)
the Company has not received any notice from the NASDAQ regarding
the delisting of the Common Stock from the NASDAQ;
(uu)
neither the Company nor any of the Subsidiaries nor any of their
respective directors, officers, affiliates or controlling persons
has taken, directly or indirectly, any action designed, or which
has constituted or might reasonably be expected to cause or result
in, 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 Notes;
(vv)
to the Company’s knowledge, there are no affiliations or
associations between any member of (i) the NASD and
(ii) any of the Company’s officers, directors, 5% or
greater security-holders or any beneficial owner of the
Company’s unregistered equity securities that were acquired
at any time on or after the 180th day immediately preceding the
date the Registration Statement was initially filed with the
Commission, except as set forth in the Registration Statement
(excluding the exhibits thereto), the Pre-Pricing Prospectuses and
the Prospectus;
17
(ww)
neither the Company nor any of its Subsidiaries nor any of its or
their properties or assets has any immunity from the jurisdiction
of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of
execution or otherwise) under the laws of the State of Delaware,
the State of New York, Taiwan, the People’s Republic of China
(“China”) and Hong Kong;
(xx)
no relationship, direct or indirect, exists between or among the
Company and the Subsidiaries, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or
the Subsidiaries, on the other hand, which would be required to be
described in the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, that has not been so
described therein; and
(yy)
there are no material off-balance sheet arrangements (as defined in
Regulation S-K Item 303(a)(4)(ii)) that may have a
material current or future effect on the Company’s financial
condition, changes in financial condition, results of operations,
liquidity, capital expenditures or capital resources which are not
disclosed or incorporated by reference in the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any.
In
addition, any certificate signed by any officer of the Company or
any of the Subsidiaries and delivered to the Underwriters or
counsel for the Underwriters in connection with the offering of the
Notes shall be deemed to be a representation and warranty by the
Company or Subsidiary, as the case may be, as to matters covered
thereby, to each Underwriter.
4.
Certain Covenants of the Company . The Company hereby
agrees:
(a)
to furnish such information as may be required and otherwise to
cooperate in qualifying the Notes 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 Notes;
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 Notes); and to
promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Notes for offer or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(b)
to make available to the Underwriters in New York City, as soon as
practicable after this Agreement becomes effective, and thereafter
from time to time to furnish to the Underwriters, as many copies of
the Prospectus (or of the Prospectus as amended or supplemented if
the Company shall have made any amendments or supplements thereto
after the effective date of the Registration Statement) as the
Underwriters may request for the purposes contemplated by the Act;
in case any Underwriter is required to deliver (whether physically
or through compliance with Rule 172 under the Act or any
similar rule), in connection with the sale of the Notes, a
prospectus after the nine-month period referred to in
Section 10(a)(3) of the Act, or after the time a
post-effective amendment to the Registration Statement is required
pursuant to
18
Item 512(a) of Regulation S-K under
the Act, the Company will prepare, at its expense, promptly upon
request such amendment or amendments to the Registration Statement
and the Prospectus as may be necessary to permit compliance with
the requirements of Section 10(a)(3) of the Act or Item 512(a) of
Regulation S-K under the Act, as the case may be;
(c)
if, at the time this Agreement is executed and delivered, it is
necessary or appropriate for a post-effective amendment to the
Registration Statement, or a Registration Statement under Rule
462(b) under the Act, to be filed with the Commission and become
effective before the Notes may be sold, the Company will use its
best efforts to cause such post-effective amendment or such
Registration Statement to be filed and become effective, and will
pay any applicable fees in accordance with the Act, as soon as
possible; and the Company will advise you promptly and, if
requested by you, will confirm such advice in writing,
(i) when such post-effective amendment or such Registration
Statement has become effective, and (ii) if Rule 430A
under the Act is used, when the Prospectus is filed with the
Commission pursuant to Rule 424(b) under the Act (which the Company
agrees to file in a timely manner in accordance with such
Rules);
(d)
if, at any time during the period when a prospectus is required by
the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection
with any sale of Notes, the Registration Statement shall cease to
comply with the requirements of the Act with respect to eligibility
for the use of the form on which the Registration Statement was
filed with the Commission or the Registration Statement shall cease
to be an “automatic shelf registration statement” (as
defined in Rule 405 under the Act) or the Company shall have
received, from the Commission, a notice, pursuant to
Rule 401(g)(2), of objection to the use of the form on which
the Registration Statement was filed with the Commission, to
(i) promptly notify you, (ii) promptly file with the
Commission a new registration statement under the Act, relating to
the Notes, or a post-effective amendment to the Registration
Statement, which new registration statement or post-effective
amendment shall comply with the requirements of the Act and shall
be in a form reasonably satisfactory to you, (iii) use its
best efforts to cause such new registration statement or
post-effective amendment to become effective under the Act as soon
as practicable, (iv) promptly notify you of such effectiveness
and (v) take all other action necessary or appropriate to
permit the public offering and sale of the Notes to continue as
contemplated in the Prospectus; all references herein to the
Registration Statement shall be deemed to include each such new
registration statement or post-effective amendment, if
any;
(e)
if the third anniversary of the initial effective date of the
Registration Statement (within the meaning of Rule 415(a)(5)
under the Act) shall occur at any time during the period when a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Notes, to file
with the Commission, prior to such third anniversary, a new
registration statement under the Act relating to the Notes, which
new registration statement shall comply with the requirements of
the Act (including, without limitation, Rule 415(a)(6) under
the Act) and shall be in a form reasonably
19
satisfactory to
you; such new registration statement shall constitute an
“automatic shelf registration statement” (as defined in
Rule 405 under the Act); provided , however ,
that if the Company is not then eligible to file an
“automatic shelf registration statement” (as defined in
Rule 405 under the Act), then such new registration statement
need not constitute an “automatic shelf registration
statement” (as defined in Rule 405 under the Act), but
the Company shall use its best efforts to cause such new
registration statement to become effective under the Act as soon as
practicable, but in any event within 180 days after such third
anniversary and promptly notify you of such effectiveness; the
Company shall take all other action necessary or appropriate to
permit the public offering and sale of the Notes to continue as
contemplated in the Prospectus; all references herein to the
Registration Statement shall be deemed to include each such new
registration statement, if any;
(f)
to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus,
or any Permitted Free-Writing Prospectus or for additional
information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order, suspending the
effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the
lifting or removal of such order as soon as possible; to advise you
promptly of any proposal to amend or supplement the Registration
Statement, any Pre-Pricing Prospectus, or the Prospectus, including
by filing any documents that would be incorporated therein by
reference, and to provide you and Underwriters’ counsel
copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such
amendment or supplement to which you shall reasonably object in
writing;
(g)
subject to Section 4(f) hereof, to file promptly all reports and
any definitive proxy or information statement required to be filed
by the Company with the Commission in order to comply with the
Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
the offering or sale of the Notes; and to provide you, for your
review and comment, with a copy of such reports and statements and
other documents to be filed by the Company pursuant to
Section 13, 14 or 15(d) of the Exchange Act during such period
a reasonable amount of time prior to any proposed filing, and to
file no such report, statement or document to which you shall have
reasonably objected in writing; and to promptly notify you of such
filing;
(h)
to pay the fees applicable to the Registration Statement in
connection with the offering of the Notes within the time required
by Rule 456(b)(1)(i) under the Act (without reliance on the
proviso to Rule 456(b)(1)(i) under the Act) and in compliance
with Rule 456(b) and Rule 457(r) under the Act;
(i)
to advise the Underwriters promptly of the happening of any event
within the time during which a prospectus is required by the Act to
be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in
20
connection with
any sale of Notes, which could require the making of any change in
the Prospectus then being used so that the Prospectus would not
include an untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not
misleading, and to advise the Underwriters promptly if, during such
period, it shall become necessary to amend or supplement the
Prospectus to cause the Prospectus to comply with the requirements
of the Act, and, in each case, during such time, subject to Section
4(f) hereof, to prepare and furnish, at the Company’s
expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any
such change or to effect such compliance;
(j)
to make generally available to its security holders, and to deliver
to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of
twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) of the Act) as
soon as is reasonably practicable after the termination of such
twelve-month period but not later than November 9,
2007;
(k)
to furnish to you two copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by
reference therein) and sufficient copies of the foregoing (other
than exhibits and documents incorporated by reference therein) for
distribution of a conformed copy to each of the other
Underwriters;
(l)
to furnish to you as early as practicable prior to the time of
purchase and any additional time of purchase, as the case may be,
but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly consolidated
financial statements, if any, of the Company and the Subsidiaries
which have been read by the Company’s independent registered
public accountants, as stated in their letter to be furnished
pursuant to Section 6(f) hereof;
(m)
to apply the net proceeds from the sale of the Notes in the manner
set forth under the caption “Use of Proceeds” in the
Prospectus;
(n)
to use its best efforts to maintain the listing of Common Stock for
quotation on the NASDAQ; and
(o)
to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the
Common Stock.
(p)
to pay all costs, expenses, fees and taxes (excluding any fees and
disbursements of counsel for the Underwriters, except as set forth
in clauses (iv) and (vi) of this Section 4(p) and in
Section 5) in connection with (i) the preparation and
filing of the Registration Statement, each Pre-Pricing Prospectus,
the Prospectus, each Permitted Free Writing Prospectus and any
amendments or supplements thereto, and the printing and furnishing
of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the
registration, issuance, sale and delivery of the
21
Notes by the
Company including any stock or transfer taxes and stamp or similar
duties payable upon the sale, issuance or delivery of the Notes to
the Underwriters, (iii) the producing, word processing and/or
printing of this Agreement, the other Transaction Documents, any
Agreement Among Underwriters, any dealer agreements, any power of
attorney and any closing documents (including compilations thereof)
and the reproduction and/or printing and furnishing of copies of
each thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the
qualification of the Notes for offering and sale under state or
foreign laws and the determination of their eligibility for
investment under state or foreign law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel to
the Underwriters) and the printing and furnishing of copies of any
blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (v) any listing of the Underlying Securities
on any securities exchange or qualification of the Underlying
Securities for quotation on NASDAQ, (vi) any filing for review
of the public offering of the Notes by the NASD, including the
legal fees and filing fees and other disbursements of counsel to
the Underwriters, (vii) the fees and disbursements of any
transfer agent or registrar for the Underlying Securities,
(viii) the fees and disbursements of the Trustee and any agent
of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Notes;
(ix) any fees charged by investment rating agencies for the
rating of the Notes; (x) the costs and expenses of the Company
relating to presentations or meetings undertaken in connection with
the marketing of the offering and sale of the Notes to prospective
investors and the Underwriters’ sales forces, including,
without limitation expenses associated with the production of road
show slides and graphics, expenses associated with any Internet
road show, fees and expenses of any consultants engaged in
connection with road show presentations, travel, lodging and other
expenses incurred by the officers of the Company and any such
consultants and the cost of any aircraft chartered in connection
with the road show, and (xi) the performance of the
Company’s other obligations hereunder; provided ,
however , that, upon the closing of the offering
contemplated by this Agreement, the Underwriters agree to reimburse
the Company for a portion of the Company’s out-of-pocket
expenses in connection with such offering, as agreed between the
Company and the Underwriters;
(q)
to comply with Rule 433(d) under the Act (without reliance on Rule
164(b) under the Act) and with Rule 433(g) under the
Act;
(r)
beginning on the date hereof and ending on, and including, the date
that is 90 days after the date of the Prospectus (the
“Lock-Up Period”), without the prior written consent of
UBS, not to (i) issue, sell, offer to sell, contract or agree
to sell, hypothecate, pledge, grant any option to purchase or
otherwise dispose of or agree to dispose of, directly or
indirectly, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning
of Section 16
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