Exhibit 1.1
NTELOS HOLDINGS
CORP.
14,375,000 Shares of Common
Stock
UNDERWRITING
AGREEMENT
,
2006
Lehman Brothers Inc.
Bear, Stearns & Co. Inc.
As Representatives of the several
Underwriters named in
Schedule 1 attached hereto,
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
NTELOS Holdings Corp., a Delaware
corporation (the “ Company ”), proposes to sell
an aggregate of 14,375,000 shares (the “ Firm Stock
”) of the Company’s common stock, par value $0.01 per
share (the “ Common Stock ”). In addition, the
Company proposes to grant to the underwriters (the “
Underwriters ”) named in Schedule 1 attached to
this agreement (this “ Agreement ”) options to
purchase up to an aggregate of 2,156,250 shares of the Common Stock
on the terms set forth in Section 2 (the “ Option
Stock ”). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the “
Stock .” This is to confirm the agreement concerning
the purchase of the Stock from the Company by the
Underwriters.
1. Representations, Warranties
and Agreements of the Company. The Company represents, warrants
and agrees that:
(a) A registration statement on Form
S-1 with respect to the Stock has (i) been prepared by the
Company in conformity with the requirements of the Securities Act
of 1933, as amended (the “ Securities Act ”),
and the rules and regulations (the “ Rules and
Regulations ”) of the Securities and Exchange Commission
(the “ Commission ”) thereunder; (ii) been
filed with the Commission under the Securities Act; and
(iii) become effective under the Securities Act. Copies of
such registration statement and any amendment thereto have been
delivered by the Company to you as the representatives (the “
Representatives ”) of the Underwriters. As used in
this Agreement:
(i) “ Applicable Time
” means
[ ]
[a.m.][p.m.] (New York City time) on the date of this
Agreement;
(ii) “ Effective Date
” means the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, was
declared effective by the Commission;
(iii) “ Issuer Free Writing
Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or, to the knowledge of the Company, on
behalf of the Company or used or referred to by the Company in
connection with the offering of the Stock;
(iv) “ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Stock included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(v) “ Oral Pricing
Information ” means the pricing information set forth on
Exhibit D that the Underwriters have or will orally provide to
prospective purchasers prior to confirming sales;
(vi) “ Pricing Disclosure
Package ” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with the Oral Pricing
Information and each Issuer Free Writing Prospectus filed by the
Company on or before the Applicable Time;
(vii) “ Prospectus
” means the final prospectus relating to the Stock, as filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(viii) “ Registration
Statement ” means such registration statement, as amended
as of the Effective Date, including any Preliminary Prospectus or
the Prospectus and all exhibits to such registration statement;
and
(ix) “ Prospectus Delivery
Period ” means such period of time after the first date
of the public offering of the Stock as in the opinion of counsel
for the Underwriters a prospectus relating to the Stock is required
by law to be delivered (or required to be delivered but for Rule
172 under the Securities Act) in connection with the sale of the
Stock by any Underwriter or dealer.
Any reference to the “ most
recent Preliminary Prospectus ” shall be deemed to refer
to the latest Preliminary Prospectus included in the Registration
Statement or filed pursuant to Rule 424(b) on or prior to the date
hereof. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus
or suspending the effectiveness of the Registration Statement, and
no proceeding or examination for such purpose has been instituted
or threatened by the Commission.
(b) 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
Rules and Regulations) of the Stock, is not on the date hereof and
will not be on the applicable Delivery Date an “ineligible
issuer” (as defined in Rule 405).
(c) The Registration Statement
conformed and will conform in all material respects on the
Effective Date and on the applicable Delivery Date, 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 Securities Act and the Rules and Regulations.
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) and on the applicable
Delivery Date to the requirements of the Securities Act and the
Rules and Regulations.
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(d) The Registration Statement did
not, as of the Effective Date, 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, which information is specified in
Section 8(e).
(e) The Prospectus will not, as of
its date and on the applicable Delivery Date, 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,
which information is specified in Section 8(e).
(f) The Pricing Disclosure Package
did not, as of the Applicable 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, in the
light of the circumstances under which they were made, not
misleading, except that the price of the Stock and disclosures
directly relating thereto and derived therefrom will be included in
all relevant portions of the Prospectus; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package 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, which information is specified
in Section 8(e).
(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 Pricing Disclosure Package as of 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, except that the price of the
Stock and disclosures directly relating thereto and derived
therefrom will be included in all relevant portions of the
Prospectus.
(h) Each Issuer Free Writing
Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the Rules and
Regulations 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 Rules and
Regulations. The Company has not made any offer relating to the
Stock that would constitute an Issuer Free Writing Prospectus
without the prior consent of the
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Representatives. The Company has
retained in accordance with the Rules and Regulations all Issuer
Free Writing Prospectuses that were not required to be filed
pursuant to the Rules and Regulations. The Company has taken all
actions necessary so that any “road show” (as defined
in Rule 433 of the Rules and Regulations) in connection with the
offering of the Stock will not be required to be filed pursuant to
the Rules and Regulations.
(i) The Company has an authorized
capitalization as set forth in each of the most recent Preliminary
Prospectus and the Prospectus, and all of the issued shares of
capital stock of the Company have been duly authorized and validly
issued, are fully paid and non-assessable, conform to the
description thereof contained in each of the most recent
Preliminary Prospectus and the Prospectus and were issued in
compliance with federal and state securities laws and not in
violation of any preemptive right, resale right, right of first
refusal or similar right. All of the Company’s options,
warrants and other rights to purchase or exchange any securities
for shares of the Company’s capital stock have been duly
authorized and validly issued, conform to the description thereof
contained in each of the most recent Preliminary Prospectus and the
Prospectus and were issued in compliance with federal and state
securities laws. All of the issued shares of capital stock of each
subsidiary of the Company have been duly authorized and validly
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except for such liens,
encumbrances, equities or claims as could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
(j) The shares of the Stock to be
issued and sold by the Company to the Underwriters hereunder have
been duly authorized and, upon payment and delivery in accordance
with this Agreement, will be validly issued, fully paid and
non-assessable, will conform to the description thereof contained
in each of the most recent Preliminary Prospectus and the
Prospectus, will be issued in compliance with federal and state
securities laws and will be free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and
similar rights.
(k) The Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement. This Agreement has been duly and
validly authorized, executed and delivered by the
Company.
(l) Except for the registration of
the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), and applicable state or foreign
securities laws in connection with the purchase and sale of the
Stock by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets is required for
the execution, delivery and performance of this Agreement by the
Company, the consummation of the transactions contemplated hereby
and the application of the proceeds from the sale of the Stock as
described under “Use of Proceeds” in each of the most
recent Preliminary Prospectus and the Prospectus.
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(m) Except as identified in the most
recent Preliminary Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(n) The Company has not sold or
issued any securities that would be integrated with the offering of
the Stock contemplated by this Agreement pursuant to the Securities
Act, the Rules and Regulations or the interpretations thereof by
the Commission.
(o) The historical financial
statements (including the related notes and supporting schedules)
included in the most recent Preliminary Prospectus comply as to
form in all material respects with the requirements of Regulation
S-X under the Securities Act and present fairly the financial
condition, results of operations and cash flows of the entities
purported to be shown thereby at the dates and for the periods
indicated and have been prepared in conformity with accounting
principles generally accepted in the United States applied on a
consistent basis throughout the periods involved.
(p) The pro forma financial
statements included in the most recent Preliminary Prospectus
include assumptions that provide a reasonable basis for presenting
the significant effects directly attributable to the transactions
and events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma
adjustments reflect the proper application of those adjustments to
the historical financial statement amounts in the pro forma
financial statements included in the most recent Preliminary
Prospectus. The pro forma financial statements included in the most
recent Preliminary Prospectus comply as to form in all material
respects with the applicable requirements of Regulation S-X under
the Act.
(q) There are no legal or
governmental proceedings or contracts or other documents of a
character required to be described in the Registration Statement or
the most recent Preliminary Prospectus or, in the case of
documents, to be filed as exhibits to the Registration Statement,
that are not described and filed as required. Neither the Company
nor any of its subsidiaries has knowledge that any other party to
any such contract, agreement or arrangement has any intention not
to render full performance as contemplated by the terms thereof;
and that statements made in the most recent Preliminary Prospectus
under the captions “Regulation” insofar as they purport
to constitute summaries of the terms of statutes, rules or
regulations, legal or governmental proceedings or contracts and
other documents, constitute accurate summaries of the terms of such
statutes, rules and regulations, legal and governmental proceedings
and contracts and other documents in all material
respects.
(r) Except as described in the most
recent Preliminary Prospectus, no relationship, direct or indirect,
exists between or among the Company, on the one hand,
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and the directors, officers,
stockholders, customers or suppliers of the Company, on the other
hand, that is required to be described in the most recent
Preliminary Prospectus or the Prospectus which is not so
described.
(s) (i) The Company and each of
its subsidiaries have established and maintain disclosure controls
and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures
are designed to ensure that the information required to be
disclosed by the Company and its subsidiaries in the reports they
file or submit under the Exchange Act is accumulated and
communicated to management of the Company and its subsidiaries,
including their respective principal executive officers and
principal financial officers, as appropriate, to allow timely
decisions regarding required disclosure to be made and
(iii) such disclosure controls and procedures are effective in
all material respects to perform the functions for which they were
established.
(t) Since the date of the most
recent balance sheet of the Company and its consolidated
subsidiaries reviewed or audited by KPMG LLP and the audit
committee of the board of directors of the Company, (i) the
Company has not been advised of (A) any significant
deficiencies in the design or operation of internal controls that
could adversely affect the ability of the Company and each of its
subsidiaries to record, process, summarize and report financial
data, or any material weaknesses in internal controls and
(B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
internal controls of the Company and each of its subsidiaries, and
(ii) 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.
(u) No subsidiary of the Company 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 or contemplated by the most recent Preliminary
Prospectus.
(v) The Company has not distributed
and, prior to the later to occur of any Delivery Date and
completion of the distribution of the Stock, will not distribute
any offering material in connection with the offering and sale of
the Stock other than any Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus to which the Representatives
have consented in accordance with Section 1(h) or
5(a)(vi).
(w) The Company has not taken and
will not take, directly or indirectly, any action designed to or
that has constituted or that could reasonably be expected to cause
or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
shares of the Stock.
(x) The Stock has been approved for
inclusion, subject to official notice of issuance and evidence of
satisfactory distribution, in The NASDAQ National
Market.
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(y) Subsequent to the respective
dates as of which information is given in the most recent
Preliminary Prospectus, the Company has not declared, paid or made
any dividends or other distributions of any kind on or in respect
of its capital stock and there has been no material adverse change
or any development involving a prospective material adverse change,
in the capital stock or the long-term debt, or material increase in
the short-term debt, of the Company or any subsidiary from that set
forth in the most recent Preliminary Prospectus, whether or not
arising from transactions in the ordinary course of business, in or
affecting (i) the business, condition (financial or
otherwise), results of operations, stockholders’ equity,
properties or prospects of the Company and its subsidiaries taken
as a whole; (ii) the ability of the Company to consummate the
sale of the Stock or any of the other transactions contemplated
hereby.
(z) Each of the Company and each of
its subsidiaries has been duly organized and is validly existing as
a corporation, partnership or limited liability company in good
standing under the laws of its jurisdiction of incorporation or
organization. Each of the Company and each of its subsidiaries has
all requisite power and authority to carry on its business as it is
currently being conducted and as described in the most recent
Preliminary Prospectus, and to own, lease and operate its
respective properties.
(aa) Each of the Company and each of
its subsidiaries is duly qualified and authorized to do business
and is in good standing as a foreign corporation, partnership or
limited liability company in each jurisdiction in which the
character or location of its properties (owned, leased or licensed)
or the nature or conduct of its business requires such
qualification, except for those failures to be so qualified or in
good standing which (individually or in the aggregate) could not
reasonably be expected to have a material adverse effect on
(A) the properties, business, results of operations, condition
(financial or otherwise), stockholders’ equity, properties or
prospects of the Company and its subsidiaries taken as a whole;
(B) the long-term debt or capital stock of the Company or any
of its subsidiaries; (C) the issuance or marketability of the
Stock or (D) the validity of this Agreement or the
transactions described in the most recent Preliminary Prospectus
under the caption “Use of Proceeds” (any such effect
being a “ Material Adverse Effect ”).
(bb) The subsidiaries listed on
Exhibit B are the only subsidiaries of the Company
within the meaning of Rule 405 under the Act. Except for these
subsidiaries, the Company holds no ownership or other interest,
nominal or beneficial, direct or indirect, in any corporation,
partnership, joint venture or other business entity. All of the
issued shares of capital stock of or other ownership interests in
each subsidiary have been duly and validly authorized and issued
and are fully paid and non-assessable and are owned, directly or
indirectly, by the Company (except in the case of Valley Network
Partnership, Virginia Independent Telephone Alliance and Virginia
PCS Alliance, L.C.), free and clear of any lien, charge, mortgage,
pledge, security interest, claim, limitation on voting rights,
equity, trust or other encumbrance, preferential arrangement,
defect or restriction of any kind whatsoever (any “
Lien ”), except for any such security interest, claim,
lien, limitation on voting rights or encumbrance pursuant to the
first and second lien Credit Facilities, dated as of
February 24, 2005, by and among NTELOS Inc., the guarantors
party thereto, the lenders party thereto and Morgan Stanley Senior
Funding, Inc., as administrative agent (the “ Credit
Facilities ”).
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(cc) Except as disclosed in the most
recent Preliminary Prospectus, neither the Company nor any of its
subsidiaries has outstanding subscriptions, rights, warrants,
calls, commitments of sale or options to acquire, or any preemptive
rights or other rights to subscribe for or to purchase, or any
contracts or commitments to issue or sell, or instruments
convertible into or exchangeable for, any capital stock or other
equity interest in, the Company or its subsidiaries.
(dd) Neither the Company nor any of
its subsidiaries is (i) in violation of its certificate or
articles of incorporation, bylaws, certificate of formation,
limited liability company agreement, partnership agreement or other
organizational documents, (ii) in default under, and no event
has occurred which, with notice or lapse of time or both or
otherwise, would constitute a default under, or result in the
creation or imposition of any Lien upon, any of its property or
assets pursuant to, any bond, debenture, note, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties or assets is subject, or (iii) in violation of any
law, rule, regulation, ordinance, directive, judgment, decree or
order of any judicial, regulatory or other legal or governmental
agency or body (including, without limitation, environmental laws,
statutes, ordinances, rules, regulations, judgments or court
decrees, the Federal Communications Act of 1934, as amended (the
“ Communications Act ”), rules or regulations of
the Federal Communications Commission (“ FCC ”),
applicable state public utility and telecommunications regulations
and the rules and regulations of state public utilities commissions
in which the Company and its subsidiaries conducts business),
foreign or domestic, except (in the case clauses (ii) and
(iii) above) defaults or violations that could not
(individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect and except (in the case of clause
(ii) alone) for any Lien disclosed in the most recent
Preliminary Prospectus.
(ee) None of (i) the execution,
delivery, and performance by the Company of this Agreement and
consummation of the transactions contemplated hereby, (ii) the
issuance and sale of the Stock, or (iii) consummation by the
Company of the transactions described in the most recent
Preliminary Prospectus under the caption “Use of
Proceeds,” (A) violates or will violate, conflicts with
or will conflict with, requires or will require consent under, or
results or will result in a breach of any of the terms and
provisions of, or constitutes or will constitute a default (or an
event which with notice or lapse of time, or both, would constitute
a default) under, or results or will result in the creation or
imposition of any Lien upon any properties or assets of the Company
or any of its subsidiaries or an acceleration of any indebtedness
of the Company or any of its subsidiaries pursuant to (1) any
provision of the certificate or articles of incorporation, bylaws,
certificate of formation, limited liability company agreement,
partnership agreement or other organizational document of the
Company or any of its subsidiaries, (2) any bond, debenture,
note, indenture, mortgage, deed of trust, loan agreement or other
agreement, instrument, franchise, license or permit to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiary or their
8
respective properties, operations or
assets is or may be bound, (3) or any statute, law, ordinance,
rule or regulation (including, without limitation, the
Communications Act, the rules and regulations of the FCC,
applicable state public utility and telecommunications regulations
and the rules and regulations of state public utilities commissions
in which the Company or any of its subsidiaries conducts business)
applicable to the Company or any of its subsidiaries or any of
their properties or assets or (4) any directive, judgment,
decree or order of any judicial, regulatory or other legal or
governmental agency or body (including, without limitation, the FCC
and state public utilities commissions in which the Company or any
of its subsidiaries conducts business), domestic or foreign, except
(in the case of clauses (2), (3) and (4) above) as could
not (individually or in the aggregate) reasonably be expected to
have a Material Adverse Effect.
(ff) Each of the Company and its
subsidiaries has all consents, approvals, authorizations, orders,
registrations, qualifications, licenses, filings and permits of,
with and from all judicial, regulatory and other legal or
governmental agencies, bodies or administrative agencies
(including, without limitation, the FCC and state public utilities
commissions in which the Company or any of its subsidiaries
conducts business), and all third parties, foreign and domestic
(collectively, the “ Consents ”), necessary to
own, lease and operate its properties and conduct its business as
it is now being conducted and as disclosed in the most recent
Preliminary Prospectus, except where the failure to obtain such
consents, approvals, authorizations, orders, registrations,
qualifications and permits and to make such filings could not
(individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect, and each such Consent is valid and in full
force and effect, and neither the Company nor any of its
subsidiaries has received notice of any investigation or
proceedings which, if decided adversely to the Company or any of
its subsidiaries, could reasonably be expected to result in the
revocation of, or imposition of a restriction on, any Consent that
could reasonably be expected to have a Material Adverse Effect.
Each of the Company and its subsidiaries is in compliance with all
applicable laws, rules, regulations, ordinances, directives,
judgments, decrees and orders, foreign and domestic, except where
failure to be in compliance could not (individually or in the
aggregate) reasonably be expected to have a Material Adverse
Effect. No Consent contains a materially burdensome restriction not
adequately disclosed in the most recent Preliminary
Prospectus.
(gg) Except as disclosed in the most
recent Preliminary Prospectus, there is (i) no judicial,
regulatory, arbitral or other legal or governmental action, suit,
investigation or proceeding or other litigation or arbitration
before or by any court, arbitrator or governmental agency, body or
official (including, without limitation, the FCC and state public
utilities commissions in which the Company or any of its
subsidiaries conducts business), domestic or foreign, pending to
which the Company or any of its subsidiaries is or may be a party
or of which the business, property, operations or assets of the
Company or any of its subsidiaries is or may be subject,
(ii) no statute, rule, regulation or order that has been
enacted, adopted or issued by any governmental agency (including,
without limitation, the FCC and state public utilities commissions
in which the Company or any of its subsidiaries conducts business)
or that has been proposed by any governmental body, and
(iii) no injunction, restraining order or order of any nature
by a federal or state court or foreign court of competent
jurisdiction to which
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the Company or any of its
subsidiaries is or may be subject or to which the business,
property, operations or assets of the Company or any of its
subsidiaries is or may be subject, that, (individually or in the
aggregate), if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material
Adverse Effect; to the Company’s knowledge, no such
proceeding, litigation or arbitration is threatened or
contemplated; and the defense of all such proceedings, litigation
and arbitration against or involving the Company or any of its
subsidiaries could not reasonably be expected to have a Material
Adverse Effect.
(hh) There exists as of the date
hereof (after giving effect to the transactions contemplated by the
Prospectus) no event or condition that would constitute a default
or an event of default (in each case as defined in the offering
documents) under any of the offering documents that would result in
a Material Adverse Effect or materially adversely affect the
ability of the Company to consummate the sale of the Stock and the
other transactions contemplated by the most recent Preliminary
Prospectus.
(ii) No action has been taken and no
statute, rule, regulation or order has been enacted, adopted or
issued by any governmental agency (including, without limitation,
the FCC and state public utilities commissions in which the Company
or any of its subsidiaries conducts business) that prevents the
sale of the Stock or prevents or suspends the use of the most
recent Preliminary Prospectus or the Prospectus; no injunction,
restraining order or order of any nature by a federal or state
court of competent jurisdiction has been issued that prevents the
sale of the Stock or prevents or suspends the sale of the Stock in
any jurisdiction referred to in Section 1(z) hereof; and every
request of any securities authority or agency of any jurisdiction
for additional information has been complied with in all material
respects.
(jj) There is (i) no
significant unfair labor practice complaint pending against the
Company or any of its subsidiaries nor, to the knowledge of the
Company, threatened against any of them, before the National Labor
Relations Board, any state or local labor relations board or any
foreign labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company
or any of its subsidiaries or, to the knowledge of the Company,
threatened against any of them, (ii) no significant strike,
labor dispute, slowdown, or stoppage pending against the Company or
any of its subsidiaries nor, to the knowledge of the Company,
threatened against any of them, (iii) no labor disturbance by
the employees of the Company or any of its subsidiaries or, to the
knowledge of the Company, no such disturbance is imminent and the
Company is not aware of any existing or imminent labor disturbances
by the employees of any of its respective, or any
subsidiary’s, principal suppliers, manufacturers, customers
or contractors that, in any such case (individually or in the
aggregate), could reasonably be expected to have a Material Adverse
Effect, and (iv) no union representation question existing (to
the knowledge of the Company) with respect to the employees of the
Company of any of its subsidiaries. To the knowledge of the
Company, no collective bargaining organizing activities are taking
place with respect to the Company. None of the Company or any of
its subsidiaries has violated (i) any federal, state or local
law or foreign law relating to discrimination in hiring, promotion
or pay of employees or (ii) any applicable wage or hour laws,
except those violations that could not reasonably be expected to
have a Material Adverse Effect.
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(kk) No non-exempt “prohibited
transaction” (as defined in either Section 406 of the
Employee Retirement Income Security Act of 1974, as amended,
including the rules, regulations and published interpretations
thereunder (“ ERISA ”) or Section 4975 of
the Internal Revenue Code of 1986, as amended from time to time
(the “ Code ”)), “accumulated funding
deficiency” (as defined in Section 302 of ERISA) or
other event of the kind described in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice
requirement under Section 4043 of ERISA has been waived) has
occurred with respect to any employee benefit plan for which the
Company or any of its subsidiaries would have any liability that
could reasonably be expected to have a Material Adverse Effect;
each employee benefit plan for which the Company or any of its
subsidiaries would have any liability has been administered in
compliance with applicable law, including (without limitation)
ERISA and the Code, except where the failure to be in compliance
could not reasonably be expected to have a Material Adverse Effect;
the Company has not incurred and does not reasonably expect to
incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from any “pension plan”;
and each plan for which the Company would have any liability that
is intended to be qualified under Section 401(a) of the Code
has received an IRS determination letter that it is so qualified
and, to the Company’s knowledge, nothing has occurred,
whether by action or by failure to act, which could cause the loss
of such qualification. The sale of the Stock will not involve any
prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Code.
(ll) There has been no storage,
generation, transportation, handling, treatment, disposal,
discharge, emission or other release of any kind of toxic or other
wastes or other hazardous substances by, due to, or caused by the
Company or any of its subsidiaries (or, to the Company’s
knowledge, any other entity for whose acts or omissions the Company
is or may be liable) upon any property now or previously owned or
leased by the Company or any of its subsidiaries, or upon any other
property, which would be a violation by the Company or any of its
subsidiaries of or give rise to any liability on the part of the
Company or any of its subsidiaries under any applicable law, rule,
regulation, order, judgment, decree or permit relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“
Environmental Law ”), except where the storage,
generation, transportation, handling, treatment, disposal,
discharge, emission or other release could not reasonably be
expected to have a Material Adverse Effect. To the Company’s
knowledge, there has been no disposal discharge, emission or other
release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other
hazardous substances that could reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any of its
subsidiaries has agreed to assume, undertake or provide
indemnification for any liability of any other person under any
Environmental Law, including any obligation for cleanup or remedial
action. There is no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial action, claim or
notice of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries that could reasonably be expected to have a Material
Adverse Effect.
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(mm) There is no alleged liability,
or to the knowledge of the Company, potential liability (including,
without limitation, alleged or potential liability or investigatory
costs, cleanup costs, governmental response costs, natural resource
damages, property damages, personal injuries or penalties) of the
Company or any of its subsidiaries arising out of, based on or
resulting from (i) the presence or release into the
environment of any Hazardous Material (as defined) at any location,
whether or not owned by the Company or such subsidiary, as the case
may be, or (ii) any violation or alleged violation of any
Environmental Law that could reasonably be expected to have a
Material Adverse Effect. The term “ Hazardous Material
” means (i) any “hazardous substance” as
defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, (ii) any
“hazardous waste” as defined by the Resource
Conservation and Recovery Act, as amended, (iii) any petroleum
or petroleum product, (iv) any polychlorinated biphenyl, and
(v) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material, waste or substance regulated under or
within the meaning of any other law relating to protection of human
health or the environment or imposing liability or standards of
conduct concerning any such chemical material, waste or
substance.
(nn) The Company and each of its
subsidiaries owns or leases all such properties as are necessary to
the conduct of its business as presently operated and as proposed
to be operated as described in the most recent Preliminary
Prospectus. The Company and its subsidiaries have (i) good and
marketable title in fee simple to all of real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all Liens or such as do not (individually or
in the aggregate) materially affect the value of such property or
interfere with the use made or proposed to be made of such property
by the Company and its subsidiaries); (ii) peaceful and
undisturbed possession of any real property and buildings held
under lease or sublease by the Company and its subsidiaries and
such leased or subleased real property and buildings are held by
them under valid, subsisting and enforceable leases and no default
exists thereunder, (including, to the knowledge of the Company,
defaults by the landlord) with such exceptions as are not material
to, and do not materially interfere with, the use made and proposed
to be made of such property and buildings by the Company and its
subsidiaries; (iii) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and
have made all declarations and filings with, all federal, state and
local authorities, all self-regulatory authorities and all courts
and other tribunals (each, an “ Authorization ”)
necessary to engage in the business conducted by any of them in the
manner described in the most recent Preliminary Prospectus, except
where the failure to obtain such Authorizations could not
reasonably be expected to have a Material Adverse Effect; and
(iv) no reason to believe that any governmental body or agency
is considering limiting, suspending or revoking any such
Authorization. All such Authorizations are valid and in full force
and effect and the Company and each of its subsidiaries is in
compliance in all material respects with the terms and conditions
of all such Authorizations and with the rules and regulations of
the regulatory authorities having jurisdiction with respect
thereto, except where the failure of such Authorizations
12
to be valid and in full force and
effect or where the failure to be in compliance with the terms and
conditions of such Authorizations could not reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any of
its subsidiaries has received any notice of any claim adverse to
its ownership of any real or personal property or of any claim
against the continued possession of any real property, whether
owned or held under lease or sublease by the Company or any of its
subsidiaries, except for such claims that could not reasonably be
expected to have a Material Adverse Effect.
(oo) The Company and each of its
subsidiaries (i) owns or possesses adequate right to use all
patents, patent applications, patent rights, licenses, formulae,
customer lists, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, software, systems or procedures),
trademarks, service marks, trade names, trademark registrations,
service mark registrations, computer programs, technical data and
information, and know-how and other intellectual property
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures, the
“ Intellectual Property ”) necessary for the
conduct of their respective businesses as presently being conducted
and as described in the most recent Preliminary Prospectus, except
where the failure to own or possess such rights could not
reasonably be expected to have a Material Adverse Effect and
(ii) have no reason to believe that the conduct of their
respective businesses does or will conflict with, any such right of
others and have not received any notice of any claim of conflict
with any such rights of others, except for such conflicts that
could not reasonably be expected to have a Material Adverse Effect
(except for such right, or claimed right pursuant to the Credit
Facilities). To the knowledge of the Company, all material
technical information developed by and belonging to the Company or
any of its subsidiaries, which has not been patented, has been kept
confidential. Neither the Company nor any of its subsidiaries has
granted or assigned to any other person or entity any right to
manufacture, have manufactured, assemble or sell the current
products and services of the Company and its subsidiaries other
than those products and services described in the most recent
Preliminary Prospectus. To the knowledge of the Company, there is
no infringement by third parties of any Intellectual Property of
the Company or any of its subsidiaries; there is no pending or, to
the knowledge of the Company, threatened action, suit, proceeding
or claim by others challenging the Company’s or any of its
subsidiaries’ rights in or to any Intellectual Property, and
the Company is unaware of any facts which would form a reasonable
basis for any such claim; and there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or
claim by others that the Company or any of its subsidiaries
infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of others, and the Company
are unaware of any other fact which would form a reasonable basis
for any such claim, except for such actions, suits, proceedings or
claims that could not reasonably be expected to have a Material
Adverse Effect.
(pp) Each of the Company and its
subsidiaries has timely filed (including in accordance with
applicable extensions) all material tax returns required to be
filed by it and has paid or made provision (to the extent required
by accounting principles generally accepted in the United States
(“ GAAP ”)) for the payment of all taxes,
assessments,
13
governmental or other similar
charges, including without limitation, all sales and use taxes and
all taxes that the Company or any of its subsidiaries is obligated
to withhold from amounts owing to employees, creditors and third
parties, with respect to the periods covered by such tax returns
(whether or not such amounts are shown as due on any tax return).
Except as disclosed in the most recent Preliminary Prospectus, no
material deficiency assessment with respect to a proposed
adjustment of the Company’s or any of its subsidiaries’
federal, state, local or foreign taxes is pending or, to the
knowledge of the Company, threatened. Except as disclosed in the
most recent Preliminary Prospectus, there are no material proposed
additional tax assessments against the Company or any of its
subsidiaries, or the assets or property of the Company or any of
its subsidiaries. The accruals and reserves on the books and
records of the Company and its subsidiaries in respect of tax
liabilities for any taxable period not finally determined are
adequate (in accordance with GAAP) to meet any assessments and
related liabilities for any such period and, since
December 31, 2004, the Company and its subsidiaries have not
incurred any liability for taxes other than in the ordinary course
of its business. There is no tax Lien, whether imposed by any
federal, state, foreign or other taxing authority, outstanding
against the assets, properties or business of the Company or any of
its subsidiaries, except for any tax not yet due and
payable.
(qq) The Company and its
subsidiaries (i) make and keep accurate books and records and
(ii) maintain a system of effective internal control over
financial reporting as defined in Rule 13a-15 under the Exchange
Act and a system of internal accounting controls sufficient to
provide reasonable assurances that: (i) transactions are
executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparat
