2,300,000 Shares
Common Shares
($0.01 par value)
New York, New York
[ ],
2006
Citigroup
Global Markets Inc.
Cowen & Co., LLC
SunTrust Capital Markets, Inc.
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Somanetics
Corporation, a corporation organized under the laws of the State of
Michigan (the “Company”), proposes to sell to the
several underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
2,000,000 common shares, $0.01 par value (“Common
Stock”), of the Company (said shares to be issued and sold by
the Company being hereinafter called the “Underwritten
Securities”). The Company also proposes to grant to the
Underwriters an option to purchase up to 300,000 additional shares
of Common Stock to cover over-allotments (the “Option
Securities”; the Option Securities, together with the
Underwritten Securities, being hereinafter called the
“Securities”). To the extent there are no additional
Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and
the terms Representatives and Underwriters shall mean either the
singular or plural as the context requires. Certain terms used
herein are defined in Section 19 hereof. Any reference herein
to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3.
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company
has prepared and filed with the Commission a registration statement
(file number 333-131394) on Form S-3, including a related
preliminary prospectus, for registration under the Act of the
offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time,
has become effective. The Company may have filed one or more
amendments thereto, including a related preliminary
prospectus,
each of which
has previously been furnished to you. The Company will file with
the Commission a final prospectus in accordance with
Rule 424(b). As filed, such final prospectus shall contain all
information required by the Act and the rules thereunder and,
except to the extent the Representatives shall agree in writing to
a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made
therein.
(b) On the
Effective Date, the Registration Statement did, and when the
Prospectus is first filed in accordance with Rule 424(b) and on the
Closing Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a
“settlement date”), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date
and any settlement date, the Prospectus (together with any
supplement thereto) will not include any 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 representations or
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Prospectus (or any supplement
thereto), it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8 hereof.
(c) (i) The
Disclosure Package and the price to the public, the number of
Underwritten Securities and the number of Option Securities to be
included on the cover page of the Prospectus, when taken together
as a whole, and (ii) each electronic roadshow when taken
together with the Disclosure Package, and the price to the public,
the number of Underwritten Securities and the number of Option
Securities to be included on the cover page of the Prospectus, do
not contain any 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. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
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(d) (i) At
the time of filing the Registration Statement and (ii) as of
the Execution Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is
not an Ineligible Issuer (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(e) Each Issuer
Free Writing Prospectus does not include any information that
conflicts with the information contained in the Registration
Statement, including any document incorporated by reference therein
that has not been superseded or modified. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
Section 8 hereof.
(f) The Company
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate power and authority to
own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Disclosure Package and the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the
failure to be qualified as a foreign corporation could not
reasonably be expected, individually or in the aggregate, to have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company, whether
or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement
thereto).
(g) The Company
has no subsidiaries and does not own, directly or indirectly, any
equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association
or other entity.
(h) The
Company’s authorized equity capitalization is as set forth in
the Disclosure Package and the Prospectus; the capital stock of the
Company conforms in all material respects to the description
thereof contained in the Disclosure Package and the Prospectus; the
outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Securities
being sold by the Company are duly listed, and admitted and
authorized for trading on the Nasdaq National Market; the
certificates for the Securities are in valid and sufficient form;
the holders of outstanding shares of capital stock of the Company
are not entitled to preemptive or other rights to subscribe for the
Securities; and, except as set
3
forth in the
Disclosure Package and the Prospectus, no options, warrants or
other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests
in the Company are outstanding.
(i) There is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required (and the Preliminary Prospectus contains in all material
respects the same description of the foregoing matters contained in
the Prospectus) and the statements in the Preliminary Prospectus
and the Prospectus under the captions “Risk Factors —
Risks Relating to Our Business — If we are unable to obtain
or maintain intellectual property rights relating to our technology
and products, the commercial value of our technology and products
will be adversely affected and our competitive position could be
harmed”, “Risk Factors — Risks Relating to Our
Business — If we are found to infringe or are alleged to
infringe any third party intellectual property rights, then our
business may be adversely affected”, “Risk Factors
— Risks Relating to Our Business — If we fail to obtain
and maintain necessary U.S. Food and Drug Administration clearances
for our products and indications or if clearances for future
products and indications are delayed or not issued, our business
would be harmed”, “Risk Factors — Risks Relating
to Our Business — The FDA might require us to obtain a new
clearance to label or promote the INVOS System for specific patient
subgroups, such as diabetics; if we fail to obtain such clearances,
our sales and revenues may be adversely affected”,
“Risk Factors — Risks Relating to Our Business —
After clearance or approval of our products, we are subject to
continuing regulation by the FDA, and if we fail to comply with FDA
regulations, our business could suffer”, “Risk Factors
— Risks Relating to Our Business — We have modified
some of our products without FDA clearance. The FDA could
retroactively determine that the modifications were improper and
require us to stop marketing and recall the modified
products”, “Risk Factors — Risks Relating to Our
Business — If we fail to comply with the FDA’s Quality
System Regulation, our manufacturing operations could be halted,
and our business would suffer”, “Risk Factors —
Risks Relating to Our Business — Failure to obtain or
maintain regulatory approval in foreign jurisdictions would prevent
us from marketing our products abroad”, “Risk Factors
— Risks Relating to Our Business — Federal regulatory
reforms may adversely affect our ability to sell our products
profitably,” “Risk Factors — Risks Relating to
This Offering — Provisions of our corporate charter documents
and Michigan law may delay or prevent attempts by our shareholders
to change our management and hinder efforts to acquire a
controlling interest in us”, “Business — The
CorRestore System — License Agreement”, “Business
— Proprietary Rights Information”, “Business
— Government Regulation”, “Management —
Executive Compensation — Employment Contracts and Termination
of Employment and Change-in-Control Arrangements”,
“Management — Stock Option Plans”,
“Management — 401(k) Plan”, “Description of
Capital Stock” and “Material U.S. Federal Income and
Estate Tax Consequences to Non-U.S. Holders” insofar as such
statements summarize legal matters, agreements, documents or
proceedings
4
discussed
therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings.
(j) This Agreement
has been duly authorized, executed and delivered by the
Company.
(k) The Company is
not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described
in the Disclosure Package and the Prospectus, will not be an
“investment company” as defined in the Investment
Company Act of 1940, as amended.
(l) No consent,
approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Disclosure Package and in the
Prospectus.
(m) Neither the
issue and sale of the Securities nor the consummation of any other
of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation
of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, (i) the charter
or by-laws of the Company, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company is a party or bound or to which its
property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company of
any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the
Company or any of its properties, except in the case of clause
(ii) above, for such conflicts, breaches, violations. liens,
charges or encumbrances that could not reasonably be expected,
individually or in the aggregate, to have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(n) No holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
(o) The historical
financial statements and schedules (if any) of the Company included
in the Preliminary Prospectus, the Prospectus and the Registration
Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of the Act and have been
prepared in conformity with generally
5
accepted
accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The selected
financial data set forth under the caption “Selected
Financial Data” in the Preliminary Prospectus, the Prospectus
and Registration Statement fairly present, on the basis stated in
the Preliminary Prospectus, the Prospectus and the Registration
Statement, the information included therein.
(p) No action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or its
property is pending or, to the best knowledge of the Company,
threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or
(ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement
thereto).
(q) The Company
owns or leases all such properties as are necessary to the conduct
of its operations as presently conducted.
(r) The Company is
not in violation or default of (i) any provision of its
charter or bylaws, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject,
or (iii) any statute, law, rule, regulation, judgment, order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its properties, except in
the case of clauses (ii) and (iii) above, where such violation
or default would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company, whether
or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement
thereto).
(s) Deloitte &
Touche LLP, who have certified certain financial statements of the
Company and delivered their report with respect to the audited
financial statements and schedules (if any) included in the
Prospectus, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(t) There are no
transfer taxes or other similar fees or charges under 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 by the Company or sale by the
Company of the Securities.
6
(u) The Company
has filed all foreign, federal, state and local tax returns that
are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have
a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto)) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in
good faith or as would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(v) No labor
problem or dispute with the employees of the Company exists or, to
the Company’s knowledge, is threatened or imminent, and the
Company is not aware of any existing or imminent labor disturbance
by the employees of any of its principal suppliers, contractors or
customers, that could have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(w) Except as set
forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto), the Company owns,
possesses, licenses or has other rights to use, on reasonable
terms, all patents, patent applications, trade and service marks,
trade and service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets, technology, know-how and other
intellectual property (collectively, the “Intellectual
Property”) necessary for the conduct of the Company’s
business as now conducted or as proposed in the Prospectus to be
conducted. Except as set forth in the Preliminary Prospectus and
the Prospectus, (a) to the Company’s best knowledge,
there are no rights of third parties to any such Intellectual
Property other than the retained rights of licensors with respect
to the CorRestore licensed intellectual property; (b) to the
Company’s best knowledge, there is no material infringement
by third parties of any such Intellectual Property; (c) to the
Company’s best knowledge, there is no pending or threatened
action, suit, proceeding or claim by others challenging the
Company’s rights in or to any such Intellectual Property, and
the Company is unaware of any facts which would form a reasonable
basis for any such claim; (d) to the Company’s best
knowledge, there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of
any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim;
(e) there is no pending or, to the Company’s best
knowledge, threatened action, suit, proceeding or claim
7
by others that
the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and
the Company is unaware of any other fact which would form a
reasonable basis for any such claim; (f) to the
Company’s best knowledge, there is no U.S. patent or
published U.S. patent application which contains claims that
dominate or may dominate any Intellectual Property described in the
Disclosure Package and the Prospectus as being owned by or licensed
to the Company or that interferes with the issued or pending claims
of any such Intellectual Property; and (g) there is no prior
art of which the Company is aware that may render any U.S. patent
held by the Company invalid or any U.S. patent application held by
the Company unpatentable which has not been disclosed to the U.S.
Patent and Trademark Office.
(x) Except as
disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, the Company (i) does not have any material
lending or other relationship with any bank or lending affiliate of
Citigroup Global Markets Holdings Inc. and (ii) does not
intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of
Citigroup Global Markets Holdings Inc.
(y) Except as
disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, the Company has operated and currently is in
compliance with all applicable rules, regulations and policies of
the U.S. Food and Drug Administration (“FDA”) and
comparable foreign medical device regulatory agencies outside of
the United States.
(z) Neither the
Company nor any of its 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
Michigan.
(aa) The Company
is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent
and customary in the businesses in which it is engaged; all
policies of insurance and fidelity or surety bonds insuring the
Company or its businesses, assets, employees, officers and
directors are in full force and effect; the Company is in
compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company under any
such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights
clause; the Company has not been refused any insurance coverage
sought or applied for; and the Company has no reason to believe
that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business
at a cost that would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company, whether or not arising from
transactions in
8
the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(bb) The Company
possesses all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its businesses, and the
Company has not received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company, whether
or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement
thereto).
(cc) The Company
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
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (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 the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company’s internal controls over financial reporting are
effective and the Company is not aware of any material weakness in
its internal control over financial reporting.
(dd) The Company
maintains “disclosure controls and procedures” (as such
term is defined in Rule 13a-15(e) under the Exchange Act);
such disclosure controls and procedures are effective.
(ee) The Company
has not taken, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(ff) The Company
(i) is in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) has received and is
in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct its
businesses and (iii) has not received notice of any actual or
potential liability under any environmental law, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a material adverse change in
the condition (financial or
9
otherwise),
prospects, earnings, business or properties of the Company, whether
or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement thereto).
Except as set forth in the Disclosure Package and the Prospectus,
the Company has not been named as a “potentially responsible
party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(gg) The Company
has reasonably concluded that the costs and liabilities associated
with the effect of Environmental Laws on the business, operations
and properties of the Company would not, singly or in the
aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto).
(hh) The minimum
funding standard under Section 302 of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (“ERISA”), has
been satisfied by each “pension plan” (as defined in
Section 3(2) of ERISA) which has been established or
maintained by the Company, and the trust forming part of each such
plan which is intended to be qualified under Section 401 of
the Code is so qualified; the Company has fulfilled its
obligations, if any, under Section 515 of ERISA; the Company
does not maintain and is not required to contribute to a
“welfare plan” (as defined in Section 3(1) of
ERISA) which provides retiree or other post-employment welfare
benefits or insurance coverage (other than “continuation
coverage” (as defined in Section 602 of ERISA)); each
pension plan and welfare plan established or maintained by the
Company is in compliance in all material respects with the
currently applicable provisions of ERISA; and the Company has not
incurred and could not reasonably be expected to incur any
withdrawal liability under Section 4201 of ERISA, any
liability under Section 4062, 4063, or 4064 of ERISA, or any
other liability under Title IV of ERISA.
(ii) There is and
has been no failure on the part of the Company and 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 and
the rules and regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications.
(jj) Neither the
Company nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company is aware of or
has taken any action, directly or indirectly, that would result in
a violation by such Persons of the FCPA, including, without
limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any
money,
10
or other
property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such
term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
“FCPA”
means Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder.
(kk) The
operations of the Company 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 with respect to the
Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(ll) Neither the
Company nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company 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, or lend, contribute or
otherwise make available such proceeds to any 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.
Any
certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2.
Purchase and Sale . (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $[
] per share, the amount of the Underwritten Securities set forth
opposite such Underwriter’s name in Schedule I
hereto.
(b) Subject to the
terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to
the several Underwriters to purchase, severally and not jointly, up
to
11
300,000 Option
Securities at the same purchase price per share as the Underwriters
shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time on or before the 30th day
after the date of the Prospectus upon written or telegraphic notice
by the Representatives to the Company setting forth the number of
shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The
maximum number of Option Securities to be sold by the Company is
300,000. The number of Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of
shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional
shares.
3.
Delivery and Payment . Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or
before the third Business Day prior to the Closing Date) shall be
made at 10:00 AM, New York City time, on [
], 2006, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement among
the Representatives and the Company, or as provided in
Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the “Closing
Date”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the
order of the Company by wire transfer payable in same-day funds to
the account specified by the Company. Delivery of the Underwritten
Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If
the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will
deliver the Option Securities (at the expense of the Company) to
the Representatives, at 388 Greenwich Street, New York, New York,
on the date specified by the Representatives (which shall be within
three Business Days after exercise of said option) for the
respective accounts of the several Underwriters, against payment by
the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to an account specified by the
Company. If settlement for the Option Securities occurs after the
Closing Date, the Company will deliver to the Representatives on
the settlement date for the Option Securities, and the obligation
of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to
Section 6 hereof.
12
4.
Offering by Underwriters . It is understood that the several
Underwriters propose to offer the Securities for sale to the public
as set forth in the Prospectus.
5.
Agreements . The Company agrees with the several
Underwriters that:
(a) Prior to the
termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement to
the Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to
which you reasonably object. The Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a
form approved by the Representatives with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission,
(2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (3) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Prospectus or for any additional information,
(4) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any notice objecting to its use or the institution or threatening
of any proceeding for that purpose and (5) of the receipt by
the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose.
The Company will use its best efforts to prevent the issuance of
any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as
possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an
amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as
practicable.
(b) If, at any
time prior to the filing of the Prospectus pursuant to
Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which
they were made at such time not misleading, the Company will:
(i) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented;
(ii) amend or supplement the Disclosure
13
Package to
correct such statement or omission; and (iii) supply any
amendment or supplement to you in such quantities as you may
reasonably request.
(c) If, at any
time when a prospectus relating to the Securities is required to be
delivered un
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