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EXHIBIT 1.1
3,000,000 SHARES
EMS TECHNOLOGIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
St. Petersburg, Florida
_____________, 2006
Raymond James & Associates, Inc.
Needham & Company, LLC
A.G. Edwards & Sons, Inc.
As Representatives of the Several Underwriters
listed on
Schedule I hereto
c/o Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
EMS Technologies, Inc., a Georgia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to
issue and sell
to the several Underwriters named in Schedule I hereto (the
"Underwriters"), an
aggregate of 3,000,000 shares of its Common Stock, par value $0.10
per share
(the "Common Stock"). The aggregate of 3,000,000 shares to be
purchased from the
Company are called the "Firm Shares." In addition, the Company has
agreed to
sell to the Underwriters, upon the terms and conditions stated
herein, up to an
additional 450,000 shares of Common Stock (the "Additional Shares")
to cover
over-allotments by the Underwriters, if any. The Firm Shares and
the Additional
Shares are collectively referred to in this Agreement as the
"Shares." Raymond
James & Associates, Inc., Needham & Company, LLC and A.G.
Edwards & Sons, Inc.
are acting as the representatives of the several Underwriters and
in such
capacity are referred to in this Agreement as the
"Representatives."
The Company wishes to confirm as follows its agreement with you and
the
other several Underwriters, on whose behalf you are acting, in
connection with
the several purchases of the Shares from the Company.
1.
Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission
(the
"Commission") in accordance with the provisions of the Securities
Act of 1933,
as amended, and the rules and regulations of the Commission
thereunder
(collectively, the "Act"), a registration statement on Form S-3
(File No.
333-131042),
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including a prospectus subject to completion, relating to the
Shares. Such
registration statement, as amended, including the financial
statements, exhibits
and schedules thereto, at the time when it becomes effective and as
thereafter
amended by any post-effective amendment, is referred to in this
Agreement as the
"Registration Statement." The prospectus in the form included in
the
Registration Statement or, if the prospectus included in the
Registration
Statement omits certain information in reliance upon Rule 430A
under the Act and
such information is thereafter included in a prospectus filed with
the
Commission pursuant to Rule 424(b) under the Act or as part of a
post-effective
amendment to the Registration Statement after the Registration
Statement becomes
effective, the prospectus as so filed, is referred to in this
Agreement as the
"Prospectus." If the Company files another registration statement
with the
Commission to register a portion of the Shares pursuant to Rule
462(b) under the
Act (the "Rule 462 Registration Statement"), then any reference to
"Registration
Statement" herein shall be deemed to include the registration
statement on Form
S-3 (File No. 333-131042) and the Rule 462 Registration Statement,
as each such
registration statement may be amended pursuant to the Act. The
prospectus
subject to completion in the form included in the Registration
Statement at the
time of the initial filing of such Registration Statement with the
Commission
and as such prospectus is amended or supplemented from time to time
until the
date of the Prospectus is referred to in this Agreement as the
"Preliminary
Prospectus." For purposes of this Agreement, "free writing
prospectus" has the
meaning ascribed to it in Rule 405 under the Act, and "Issuer Free
Writing
Prospectus" shall mean each free writing prospectus prepared by or
on behalf of
the Company or used or referred to by the Company in connection
with the
offering of the Common Stock. "Time of Sale Information" shall
mean, as of
_______ p.m. Eastern time on the date hereof (the "Applicable
Time"), the
Preliminary Prospectus, together with each Issuer Free Writing
Prospectuses
filed or used by the Company on or before the Applicable Time,
including those
identified in Schedule II hereto, and the pricing terms of the
offering of the
Shares specified in a final term sheet. All references in this
Agreement to the
Registration Statement, the Rule 462 Registration Statement, a
Preliminary
Prospectus, the Prospectus or the Time of Sale Information, or any
amendments or
supplements to any of the foregoing, shall be deemed to refer to
and include any
documents incorporated by reference therein (the "Incorporated
Documents"), and
shall include any copy thereof filed with the Commission pursuant
to its
Electronic Data Gathering, Analysis and Retrieval System
("EDGAR").
2.
Agreements to Sell and Purchase. The Company hereby agrees to
issue and sell the Firm Shares to the Underwriters and, upon the
basis of the
representations, warranties and agreements of the Company herein
contained and
subject to all the terms and conditions set forth herein, each
Underwriter
agrees, severally and not jointly, to purchase from the Company at
a purchase
price of $______ per Share (the "purchase price per Share"), the
number of Firm
Shares set forth opposite the name of such Underwriter in Schedule
I hereto.
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The Company hereby also agrees to sell to the Underwriters, and,
upon
the basis of the representations, warranties and agreements of the
Company
herein contained and subject to all the terms and conditions set
forth herein,
the Underwriters shall have the right for 30 days from the date of
the
Prospectus to purchase from the Company up to 450,000 Additional
Shares at the
purchase price per Share for the Firm Shares. The Additional Shares
may be
purchased solely for the purpose of covering over-allotments, if
any, made in
connection with the offering of the Firm Shares. If any Additional
Shares are to
be purchased, each Underwriter, severally and not jointly, agrees
to purchase
the number of Additional Shares (subject to such adjustments as you
may
determine to avoid fractional shares) that bears the same
proportion to the
total number of Additional Shares to be purchased by the
Underwriters as the
number of Firm Shares set forth opposite the name of such
Underwriter in
Schedule I hereto bears to the total number of Shares. The option
to purchase
Additional Shares may be exercised at any time within 30 days after
the date of
the Prospectus.
3.
Terms of Public Offering. The Company has been advised by you
that the Underwriters propose to make a public offering of their
respective
portions of the Shares as soon after the Registration Statement and
this
Agreement have become effective as in your judgment is advisable
and initially
to offer the Shares upon the terms set forth in the Prospectus.
Not later than 12:00 p.m. on the second business day following the
date
the Shares are released by the Underwriters for sale to the public,
the Company
shall deliver or cause to be delivered copies of the Prospectus in
such
quantities and at such places as the Representatives shall
request.
4.
Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of the Firm Shares and payment therefor shall be made
at the
offices of Raymond James & Associates, Inc., 880 Carillon
Parkway, St.
Petersburg, Florida at 10:00 a.m., St. Petersburg, Florida time, on
_________,
or such other place, time and date not later than 1:30 p.m., St.
Petersburg,
Florida time, on __________ as the Representatives shall designate
by notice to
the Company (the time and date of such closing are called the
"Closing Date").
The place of closing for the Firm Shares and the Closing Date may
be varied by
agreement between you and the Company. The Company hereby
acknowledges that
circumstances under which the Representatives may provide notice to
postpone the
Closing Date as originally scheduled include any determination by
the Company or
the Representatives to recirculate to the public copies of an
amended or
supplemented Prospectus or a delay as contemplated by the
provisions of Section
11 hereof.
Delivery to the Underwriters of and payment for any Additional
Shares
to be purchased by the Underwriters shall be made at the offices of
Raymond
James & Associates, Inc., 880 Carillon Parkway, St. Petersburg,
Florida, at
10:00 a.m., St. Petersburg, Florida time, on such date or dates
(the "Additional
Closing Date") (which may be the same as the Closing Date, but
shall in no event
be earlier than the Closing Date nor earlier than three nor later
than ten
business days after the giving of the notice hereinafter referred
to) as shall
be specified in a written notice, from the Representatives on
behalf of the
Underwriters to the Company, of the Underwriters' determination to
purchase a
number, specified in such notice, of Additional Shares. Such
notice
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may be given at any time within 30 days after the date of the
Prospectus and
must set forth (i) the aggregate number of Additional Shares as to
which the
Underwriters are exercising the option and (ii) the names and
denominations in
which the certificates for which the Additional Shares are to be
registered. The
place of closing for the Additional Shares and the Additional
Closing Date may
be varied by agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to
be
purchased hereunder shall be registered in such names and in such
denominations
as you shall request prior to 1:00 p.m., St. Petersburg, Florida
time, not later
than the second full business day preceding the Closing Date or the
Additional
Closing Date, as the case may be. Such certificates shall be made
available to
you in St. Petersburg, Florida for inspection and packaging not
later than 9:30
a.m., St. Petersburg, Florida time, on the business day immediately
preceding
the Closing Date or the Additional Closing Date, as the case may
be. The
certificates evidencing the Firm Shares and any Additional Shares
to be
purchased hereunder shall be delivered to you on the Closing Date
or the
Additional Closing Date, as the case may be, against payment of the
purchase
price therefore by wire transfer of immediately available funds to
an account
specified in writing, not later than the close of business on the
business day
next preceding the Closing Date or the Additional Closing Date, as
the case may
be, by the Company. Payment for the Shares sold by the Company
hereunder shall
be delivered by the Representatives to the Company.
It is understood that the Representatives have been authorized,
for
their own account and the accounts of the several Underwriters, to
accept
delivery of and receipt for, and to make payment of the purchase
price per Share
for the Firm Shares and the Additional Shares, if any, that the
Underwriters
have agreed to purchase. Raymond James and Associates, Inc.,
individually and
not as a Representative of the Underwriters, may, but shall not be
obligated to,
make payment for any Shares to be purchased by any Underwriter
whose funds shall
not have been received by the Representatives by the Closing Date
or the
Additional Closing Date, as the case may be, for the account of
such
Underwriter, but any such payment shall not relieve such
Underwriter from any of
its obligations under this Agreement.
5.
Covenants and Agreements.
The Company covenants and agrees with the several Underwriters
as
follows:
(a) The
Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become
effective, if it has
not already become effective, and will advise you promptly and, if
requested by
you, will confirm such advice in writing (i) when the Registration
Statement has
become effective and the time and date of any filing of any
post-effective
Registration Statement or any amendment or supplement to any
Preliminary
Prospectus or the Prospectus and the time and date that any
post-effective
amendment to the Registration Statement becomes effective, (ii) if
Rule 430A
under the Act is employed, when the Prospectus has been timely
filed pursuant to
Rule 424(b) under the Act, (iii) of the receipt of any comments of
the
Commission, or any request by the Commission for amendments or
supplements to
the Registration Statement, any Preliminary Prospectus or the
Prospectus or for
additional
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information, (iv) of the issuance by the Commission of any stop
order suspending
the effectiveness of the Registration Statement or of the
suspension of
qualification of the Shares for offering or sale in any
jurisdiction or the
initiation of any proceeding for such purposes and (v) within the
period of time
referred to in Section 5(h) below, of any change in the Company's
condition
(financial or other), business, prospects, properties, net worth or
results of
operations, or other event that comes to the attention of the
Company and, which
change or other event, in the judgment of the Company, makes any
statement made
in the Registration Statement or the Prospectus (as then amended
or
supplemented) untrue in any material respect or that requires the
making of any
additions thereto or changes therein in order to make the
statements therein (in
the case of the Prospectus, in light of the circumstances under
which they were
made) not misleading in any material respect, or of the necessity
to amend or
supplement the Prospectus (as then amended or supplemented) to
comply with the
Act or any other law. If at any time the Commission shall issue any
stop order
suspending the effectiveness of the Registration Statement, the
Company will
make every reasonable effort to obtain the withdrawal or lifting of
such order
at the earliest possible time. The Company will provide the
Underwriters with
copies of the form of Prospectus, in such number as the
Underwriters may
reasonably request, and file with the Commission such Prospectus in
accordance
with Rule 424(b) of the Act before the close of business on the
first business
day immediately following the date hereof.
(b) The
Company will furnish to you, without charge,
three signed duplicate originals of the Registration Statement as
originally
filed with the Commission and of each amendment thereto, including
financial
statements and all exhibits thereto, and will also furnish to you,
without
charge, such number of conformed copies of the Registration
Statement as
originally filed and of each amendment thereto as you may
reasonably request.
(c) The
Company will promptly file with the Commission
any amendment or supplement to the Registration Statement or the
Prospectus that
may, in the judgment of the Company or the Representatives, be
required by the
Act or requested by the Commission.
(d) The
Company will furnish a copy of any amendment or
supplement to the Registration Statement or to the Prospectus or
any Issuer Free
Writing Prospectus to you and counsel for Underwriters and will not
file any
such amendment or supplement or any such Issuer Free Writing
Prospectus to which
the Representatives reasonably object.
(e) The
Company will not make any offer relating to the
Common Stock that would constitute an Issuer Free Writing
Prospectus without
your prior consent.
(f) The
Company will retain in accordance with the Act
all Issuer Free Writing Prospectuses not required to be filed
pursuant to the
Act; and if at any time after the date hereof any events shall have
occurred as
a result of which any Issuer Free Writing Prospectus, as then
amended or
supplemented, would conflict with the information in the
Registration Statement,
the most recent Preliminary Prospectus or the Prospectus or would
include an
untrue statement of a material fact or omit to state any material
fact necessary
in order to make the statements therein, in the light of the
circumstances under
which they were made, not misleading,
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or, if for any other reason it shall be necessary to amend or
supplement any
Issuer Free Writing Prospectus, to notify you and, upon your
request, to file
such document and to prepare and furnish without charge to each
Underwriter as
many copies as they may from time to time reasonably request of an
amended or
supplemented Issuer Free Writing Prospectus that will correct such
conflict,
statement or omission or effect such compliance.
(g) Prior to
the execution and delivery of this
Agreement, the Company has delivered or will deliver to you,
without charge, in
such quantities as you have requested or may hereafter reasonably
request,
copies of each form of the Preliminary Prospectus. Consistent with
the
provisions of Section 5(h) hereof, the Company consents to the use,
in
accordance with the provisions of the Act and with the securities
or Blue Sky
laws of the jurisdictions in which the Shares are offered by the
several
Underwriters and by dealers, prior to the date of the Prospectus,
of each
Preliminary Prospectus so furnished by the Company.
(h) As soon
after the execution and delivery of this
Agreement as is practicable and thereafter from time to time for
such period as
in the reasonable opinion of counsel for the Underwriters a
prospectus is
required by the Act to be delivered in connection with sales by any
Underwriter
or a dealer (the "Prospectus Delivery Period"), and for so long a
period as you
may request for the distribution of the Shares, the Company will
deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus
and the Time of Sale Information (and of any amendment or
supplement thereto) as
they may reasonably request. The Company consents to the use of the
Prospectus
and the Time of Sale Information (and of any amendment or
supplement thereto) in
accordance with the provisions of the Act and with the securities
or Blue Sky
laws of the jurisdictions in which the Shares are offered by the
several
Underwriters and by all dealers to whom Shares may be sold, both in
connection
with the offering and sale of the Shares and for such period of
time thereafter
as the Prospectus is required by the Act to be delivered in
connection with
sales by any Underwriter or dealer. If at any time prior to the
later of (i) the
completion of the distribution of the Shares pursuant to the
offering
contemplated by the Registration Statement or (ii) the expiration
of prospectus
delivery requirements with respect to the Shares under Section 4(3)
of the Act
and Rule 174 thereunder, any event shall occur that in the judgment
of the
Company or in the opinion of counsel for the Underwriters is
required to be set
forth in the Prospectus (as then amended or supplemented) or should
be set forth
therein in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading, or if it
is necessary
to supplement or amend the Prospectus to comply with the Act or any
other law,
the Company will forthwith prepare and, subject to Section 5(a)
hereof, file
with the Commission and use its best efforts to cause to become
effective as
promptly as possible an appropriate supplement or amendment
thereto, and will
furnish to each Underwriter who has previously requested
Prospectuses, without
charge, a reasonable number of copies thereof.
(i) The
Company will cooperate with you and counsel for
the Underwriters in connection with the registration or
qualification of the
Shares for offering and sale by the several Underwriters and by
dealers under
the securities or Blue Sky laws of such jurisdictions as you may
reasonably
designate and will file such consents to service of process or
other documents
as
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may be reasonably necessary in order to effect and maintain such
registration or
qualification for so long as required to complete the distribution
of the
Shares; provided that in no event shall the Company be obligated to
qualify to
do business in any jurisdiction where it is not now so qualified or
to take any
action that would subject it to general service of process in
suits, other than
those arising out of the offering or sale of the Shares, as
contemplated by this
Agreement and the Prospectus, in any jurisdiction where it is not
now so
subject. In the event that the qualification of the Shares in any
jurisdiction
is suspended, the Company shall so advise you promptly in
writing.
(j) The
Company will make generally available to its
security holders a consolidated earnings statement (in form
complying with the
provisions of Rule 158), which need not be audited, covering a
twelve-month
period commencing after the effective date of the Registration
Statement and the
Rule 462 Registration Statement, if any, and ending not later than
15 months
thereafter, as soon as practicable after the end of such period,
which
consolidated earnings statement shall satisfy the provisions of
Section 11(a) of
the Act.
(k) During the
Prospectus Delivery Period, the Company
will file all documents required to be filed with the Commission
pursuant to
Sections 13, 14 and 15 of the Exchange Act in the manner and within
the time
periods required by the Securities Exchange Act of 1934, as
amended, and the
rules and regulations thereunder (collectively, the "Exchange
Act").
(l) During the
period ending three years from the date
hereof, the Company will furnish to you and, upon your request, to
each of the
other Underwriters, as promptly as practicable after they have been
filed or
mailed, as the case may be, a copy of each proxy statement,
quarterly or annual
report or other report of the Company mailed to shareholders or
filed with the
Commission, the National Association of Securities Dealers, Inc.
(the "NASD") or
the Nasdaq Stock Market ("NASDAQ") or any national securities
exchange, in each
such case unless they are otherwise available on the Commission's
EDGAR system.
(m) If this
Agreement shall terminate or shall be
terminated pursuant to clause (i) of Section 12 hereof or if this
Agreement
shall be terminated by the Underwriters because of any inability,
failure or
refusal on the part of the Company to perform in all material
respects any
agreement herein or to comply in all material respects with any of
the terms or
provisions hereof or to fulfill in all material respects any of the
conditions
of this Agreement, the Company agrees to reimburse you and the
other
Underwriters for all out-of-pocket expenses (including travel
expenses and
reasonable fees and expenses of counsel for the Underwriters, but
excluding
wages and salaries paid by you) reasonably incurred by you in
connection
herewith.
(n) The
Company will apply the net proceeds from the sale
of the Shares to be sold by it hereunder in accordance in all
material respects
with the statements under the caption "Use of Proceeds" in the
Prospectus.
(o) For a
period commencing on the date hereof and ending
on the 90th day after the date of the Prospectus (the "Lock-Up
Period"), the
Company shall not, directly or
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indirectly, (1) offer for sale, sell, pledge or otherwise dispose
of (or enter
into any transaction or device that is designed to, or could
reasonably be
expected to, result in the disposition by any person at any time in
the future
of) any shares of Common Stock or securities convertible into or
exchangeable
for Common Stock (other than pursuant to employee benefit plans,
qualified stock
option plans or other employee compensation plans existing on the
date hereof or
pursuant to currently outstanding options, warrants or rights), or
sell or grant
options, rights or warrants with respect to any shares of Common
Stock or
securities convertible into or exchangeable for Common Stock (other
than the
grant of options pursuant to option plans existing on the date
hereof), (2)
enter into any swap or other derivatives transaction that transfers
to another,
in whole or in part, any of the economic benefits or risks of
ownership of such
shares of Common Stock, whether any such transaction described in
clause (1) or
(2) above is to be settled by delivery of Common Stock or other
securities, in
cash or otherwise, (3) file or cause to be filed a registration
statement,
including any amendments, with respect to the registration of any
shares of
Common Stock or securities convertible, exercisable or exchangeable
into Common
Stock or any other securities of the Company or (4) publicly
disclose the
intention to do any of the foregoing, in each case without the
prior written
consent of the Representatives on behalf of the Underwriters, and
shall cause
each executive officer and director of the Company set forth on
Schedule III
hereto to furnish to the Representatives, prior to the Closing
Date, a letter or
letters, substantially in the form of Exhibit A hereto (the
"Lock-Up
Agreements"); notwithstanding the foregoing, if (1) during the last
17 days of
the Lock-Up Period, the Company issues an earnings release or
announces material
news or a material event relating to the Company occurs or (2)
prior to the
expiration of the Lock-Up Period, the Company announces that it
will release
earnings results during the 16-day period beginning on the last day
of the
Lock-Up Period, then the restrictions imposed in the preceding
paragraph shall
continue to apply until the expiration of the 18-day period
beginning on the
date of issuance of the earnings release or the announcement of the
material
news or the occurrence of the material event, unless the
Representatives, on
behalf of the Underwriters, waive such extension in writing.
(p) Prior to
the Closing Date or the Additional Closing
Date, as the case may be, the Company will furnish to you, as
promptly as
possible, copies of any unaudited interim consolidated financial
statements of
the Company and its subsidiaries for any period subsequent to the
periods
covered by the financial statements appearing in the
Prospectus.
(q) The
Company will comply with all provisions of any
undertakings contained in the Registration Statement.
(r) The
Company will not at any time, directly or
indirectly, take any action designed, or which might reasonably be
expected to
cause or result in, or which will constitute, stabilization or
manipulation of
the price of the shares of Common Stock to facilitate the sale or
resale of any
of the Shares.
(s) Until the
completion of the offering. the Company
will timely file with NASDAQ all documents and notices required by
the NASDAQ of
companies that have or will issue securities that are traded on the
NASDAQ.
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(t) The
Company shall engage and maintain, at its
expense, a transfer agent and, if necessary under the jurisdiction
of its
incorporation or the rules of any national securities exchange on
which the
Common Stock is listed, a registrar (which, if permitted by
applicable laws and
rules may be the same entity as the transfer agent) for the Common
Stock.
6.
Representations and Warranties.
The Company hereby represents and warrants to each Underwriter on
the
date hereof, and shall be deemed to represent and warrant to each
Underwriter on
the Closing Date and the Additional Closing Date, as the case may
be, that:
(a) The
Company was not at the time of initial filing of
the Registration Statement and at the earliest time thereafter that
the Company
or another offering participant made a bona fide offer (within the
meaning of
Rule 164(h)(2) of the Act) of the Common Stock, is not on the date
hereof and
will not be on the applicable Closing Date an "ineligible issuer"
(as defined in
Rule 405).
(b) The
Registration Statement conformed, and any
amendment to the Registration Statement filed after the date hereof
will conform
in all material respects when filed, to the requirements of the
Act. The most
recent Preliminary Prospectus conformed, and the Prospectus will
conform, in all
material respects when filed with the Commission pursuant to Rule
424(b).
(c) The
Registration Statement does not contain an untrue
statement of a material fact or omit to state a material fact
required to be
stated therein or necessary to make the statements therein not
misleading;
provided, that no representation or warranty is made as to
information contained
in or omitted from the Registration Statement in reliance upon and
in conformity
with written information furnished to the Company through the
Representatives by
or on behalf of any Underwriter specifically for inclusion
therein.
(d) The
Company satisfies all of the requirements of the
Act for use of Form S-3 for the offering of Shares contemplated
hereby. The
Prospectus will not contain an untrue statement of a material fact
or omit to
state a material fact required to be stated therein or necessary to
make the
statements therein, in the light of the circumstances under which
they were
made, not misleading; provided that no representation or warranty
is made as to
information contained in or omitted from the Prospectus in reliance
upon and in
conformity with written information furnished to the Company
through the
Representatives by or on behalf of any Underwriter specifically for
inclusion
therein. The Commission has not issued any order preventing or
suspending the
use of any Preliminary Prospectus and no proceeding for that
purpose has been
instituted or threatened by the Commission or the securities
authority of any
state or other jurisdiction.
(e) The Time
of Sale Information does not, and will not
at the Applicable Time
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contain an untrue statement of a material fact or omit to state a
material fact
required to be stated therein or necessary to make the statements
therein, in
the light of the circumstances under which they were made, not
misleading;
provided that no representation or warranty is made as to
information contained
in or omitted from the Time of Sale Information in reliance upon
and in
conformity with written information furnished to the Company
through the
Representatives by or on behalf of any Underwriter specifically for
inclusion
therein.
(f) Each
Preliminary Prospectus and the Prospectus, if
filed by electronic transmission pursuant to EDGAR (except as may
be permitted
by Regulation S-T under the Act), was identical to the copy thereof
delivered to
the Underwriters for use in connection with the offer and sale of
the Shares.
(g) Each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under
Rule 433),
when considered together with the Time of Sale Information at the
Applicable
Time, did not contain an untrue statement of a material fact or
omit to state a
material fact required to be stated therein or necessary to make
the statements
therein, in the light of the circumstances under which they were
made, not
misleading.
(h) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document
was filed,
when such amendment was file), conformed in all material respects
with the
requirements of the Exchange Act, and any further Incorporated
Documents so
filed will, when they are filed, conform in all material respects
with the
requirements of the Exchange Act and the rules and regulations
thereunder; no
such Incorporated Document when it was filed (or, if an amendment
with respect
to any such document was filed, when such amendment was filed),
contained an
untrue statement of a material fact or omitted to state a material
fact required
to be stated therein or necessary in order to make the statements
therein not
misleading; and no such further Incorporated Document, when it is
filed, will
contain an untrue statement of a material fact or will omit to
state a material
fact required to be stated therein or necessary in order to make
the statements
therein not misleading.
(i) Each Issuer
Free Writing Prospectus conformed or will
conform in all material respects to the requirements of the Act on
the date of
first use, and the Company has complied with all prospectus
delivery and any
filing requirements applicable to such Issuer Free Writing
Prospectus pursuant
to the Act. The Company has not made any offer relating to the
Common Stock that
would constitute an Issuer Free Writing Prospectus and which is not
set forth on
Schedule II hereto without the prior written consent of the
Representatives. The
Company has retained in accordance with the Act all Issuer Free
Writing
Prospectuses that were not required to be filed pursuant to the
Act. The Company
has taken all actions necessary so that any "road show" (as defined
in Rule 433)
in connection with the offering of the Stock will not be required
to be filed
pursuant to the Act.
(j) The capitalization of the Company is and will be as set
forth in the Time of Sale Information (to the extent set forth
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therein) and the Prospectus as of the date set forth therein. All
the
outstanding shares of Common Stock of the Company have been, and as
of the
Closing Date and the Additional Closing Date, as the case may be,
will be, duly
authorized and validly issued, are fully paid and nonassessable and
are free of
any preemptive or similar rights; except as set forth in the Time
of Sale
Information and the Prospectus or for any issuances of stock
options under stock
option plans of the Company referred to in the Prospectus, the
Company is not a
party to or bound by any outstanding options, warrants or similar
rights to
subscribe for, or contractual obligations to issue, sell, transfer
or acquire,
any of its capital stock or any securities convertible into or
exchangeable for
any of such capital stock; the Shares to be issued and sold to the
Underwriters
by the Company hereunder have been duly authorized and, when issued
and
delivered to the Underwriters against full payment therefor in
accordance with
the terms hereof will be validly issued, fully paid and
nonassessable and free
of any preemptive or similar rights; the capital stock of the
Company conforms
to the description thereof in the Registration Statement, the Time
of Sale
Information and the Prospectus (or any amendment or supplement
thereto); and the
delivery of certificates for the Shares being sold by the Company
against
payment therefor pursuant to the terms of this Agreement will pass
valid title
to the Shares being sold by the Company, free and clear of any
claim,
encumbrance or defect in title, to the several Underwriters
purchasing such
shares in good faith and without notice of any lien, claim or
encumbrance. The
certificates for the Shares being sold by the Company are in valid
and
sufficient form.
(k) Each of
the Company and its subsidiaries is a
corporation duly organized and validly existing as a corporation in
good
standing under the laws of the jurisdiction of its incorporation
with full
corporate power and authority to own, lease and operate its
properties and to
conduct its business as presently conducted and as described in the
Registration
Statement, the Time of Sale Information and the Prospectus (and any
amendment or
supplement thereto) and is duly registered and qualified to conduct
its business
and is in good standing in each jurisdiction or place where the
nature of its
properties or the conduct of its business requires such
registration or
qualification, except where the failure to so register or qualify
has not had or
will not have a material adverse effect on the condition (financial
or other),
business, properties, net worth, results of operations or prospects
of the
Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect").
(l) The issued
shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly
issued, are fully
paid and nonassessable and are owned by the Company free and clear
of any
security interests, liens, encumbrances, equities or claims. The
Company does
not have any subsidiaries and does not own a material interest in
or control,
directly or indirectly, any other corporation, partnership, joint
venture,
association, trust or other business organization, except as set
forth in
Exhibit 21 the Company's Annual Report on Form 10-K for its fiscal
year ended
December 31, 2004, which is incorporated by reference into the
Registration
Statement. As used in this Agreement, subsidiaries shall mean
direct and
indirect subsidiaries of the Company.
(m) There are
no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened, against
the Company or
its subsidiaries or to which the
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<PAGE>
Company or its subsidiaries or any of their properties are subject,
that are
required to be described in the Registration Statement or the
Prospectus (or any
amendment or supplement thereto) but are not described as required.
Except as
described in the Registration Statement, the Time of Sale
Information and
Prospectus, there is no action, suit, inquiry, proceeding or
investigation by or
before any court or governmental or other regulatory or
administrative agency or
commission pending or, to the knowledge of the Company, threatened,
against or
involving the Company or its subsidiaries, which might individually
or in the
aggregate prevent or adversely affect the transactions contemplated
by this
Agreement or result in a Material Adverse Effect, nor to the
Company's
knowledge, is there any basis for any such action, suit, inquiry,
proceeding or
investigation. There are no agreements, contracts, indentures,
leases or other
instruments that are required to be described in the Registration
Statement, the
Time of Sale Information or the Prospectus (or any amendment or
supplement
thereto) or to be filed as an exhibit to the Registration Statement
that are not
described, filed or incorporated by reference in the Registration
Statement, the
Time of Sale Information and the Prospectus as required by the Act.
All such
contracts to which the Company or any of its subsidiaries is a
party have been
duly authorized, executed and delivered by the Company or the
applicable
subsidiary, constitute valid and binding agreements of the Company
or the
applicable subsidiary and are enforceable against the Company or
the applicable
subsidiary in accordance with the terms thereof, except as
enforceability
thereof may be limited by (i) the applic
