Banc of America
Securities LLC
Lehman Brothers
Inc.
Piper Jaffray &
Co.
Canaccord Adams
Inc.
A.G. Edwards & Sons,
Inc.
As Representatives of the several
Underwriters named
in Schedule 1,
c/o Banc of
America Securities LLC
9 West 57 th
Street
New York, New York 10019
c/o Lehman
Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Eagle Test
Systems, Inc., a Delaware corporation (the “ Company
”), and certain stockholders of the Company named in
Schedule 2 hereto (the “ Selling Stockholders
”) propose to sell 6,500,000 shares (the “ Firm
Stock ”) of the Company’s Common Stock, par value
$0.01 per share (the “ Common Stock ”). Of the
6,500,000 shares of the Firm Stock, 6,130,000 shares are being sold
by the Company and 370,000 shares are being sold by the Selling
Stockholders. In addition, the Company proposes to grant to the
Underwriters named in Schedule 1 hereto (the “
Underwriters ”) an option to purchase up to an
additional 975,000 shares of the Common Stock on the terms and for
the purposes set forth in Section 3 (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 and the Selling
Stockholders by the Underwriters. It is agreed and understood that
references herein to “the Company” with respect to
periods prior to the Company’s reincorporation merger
effected on [___], 2006 in order to become a corporation organized
under the laws of the State of Delaware (the “Reincorporation
Merger”) shall refer to Eagle Test Systems, Inc., an Illinois
corporation and predecessor to the Company.
SECTION 1.A
Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees as follows:
(a) A
registration statement on Form S-1 relating to the Stock has
(i) been prepared by the Company in conformity in all material
respects 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 on behalf of the
Company or used or referred to by the Company in connection with
the offering of the Stock and listed in Schedule 3
hereto;
(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) “
Pricing Disclosure Package ” means, as of the
Applicable Time, the most recent Preliminary Prospectus, together
with each Issuer Free Writing Prospectus filed or used by the
Company on or before the Applicable Time (other than a road show
that is an Issuer Free Writing Prospectus but is not required to be
filed under Rule 433 of the Rules and Regulations), and the
information contained on Schedule 4 hereto;
(vi) “
Prospectus ” means the final prospectus relating to
the Stock, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations; and
(vii) “
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.
Any reference
to the “ most recent Preliminary Prospectus ”
shall be deemed to refer to the Preliminary Prospectus that was
included in the Registration Statement immediately
2
prior to the
Applicable Time. 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 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.
(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(f).
(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(f).
(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; 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
3
Underwriter
specifically for inclusion therein, which information is specified
in Section 8(f).
(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 will be included on the cover page 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 written consent of the
Representatives. Each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by
or on behalf of the Company or used or referred to by the Company
in connection with the offering of the Stock, the use of which has
been consented to by the Representatives, is listed on
Schedule 3 hereto. 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 and each of its subsidiaries (as defined in
Section 15) have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged; and none of the subsidiaries
of the Company is a “significant subsidiary”, as such
term is defined in Rule 405 of the Rules and Regulations. The
Company has no subsidiaries incorporated or formed under the laws
of any state or jurisdiction of the United States.
(j) 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
and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in the each of the most recent
Preliminary Prospectus and the Prospectus; and all of the issued
shares of capital stock of each subsidiary of the Company have been
duly and validly authorized and issued and are fully paid and
non-
4
assessable and
(except for directors’ qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims. None of the outstanding shares of
capital stock of the Company were issued in violation of any
preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase securities of the Company under
agreements to which the Company is or was a party or under
applicable law. There are no authorized or outstanding options,
warrants, preemptive rights, rights of first refusal or other
rights to purchase, or equity or debt securities convertible into
or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those described in
all material respects in each of the most recent Preliminary
Prospectus and the Prospectus. The description of the
Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder,
set forth in each of the most recent Preliminary Prospectus and the
Prospectus presents in all material respects the information
required to be shown with respect to such plans, arrangements,
options and rights.
(k) The
shares of the Stock to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor in accordance
with this Agreement, will be duly and validly issued, fully paid
and non-assessable; and the Stock will conform in all material
respects to the descriptions thereof contained in each of the most
recent Preliminary Prospectus and the Prospectus.
(l) This
Agreement has been duly authorized, executed and delivered by the
Company.
(m) The
execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby will not conflict with or result in a material breach or
violation of any of the terms or provisions of, or constitute a
material default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any material violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets; and 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 ”), by the National Association of
Securities Dealers, Inc. and under applicable state securities laws
in connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order of,
or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby and thereby.
5
(n) Except
as described in the most recent Preliminary Prospectus, there are
no contracts, agreements or understandings between the Company and
any person granting such person the right (other than rights which
have been waived in writing or otherwise satisfied) 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.
(o) The
Company has not sold or issued any shares of Common Stock during
the six-month period preceding the date of the Prospectus,
including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act, other than shares issued
pursuant to the Reincorporation Merger or pursuant to employee
benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
(p) Neither
the Company nor any of its subsidiaries has sustained, since the
date of the latest audited financial statements included in the
most recent Preliminary Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the most recent Preliminary
Prospectus; and, since such date, there has not been any change in
the capital stock (other than pursuant to the Reincorporation
Merger) or long-term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the
management, consolidated financial position, stockholders’
equity, results of operations or business of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the most recent Preliminary Prospectus.
(q) The
financial statements (including the related notes and supporting
schedules) included in the most recent Preliminary Prospectus
present fairly the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and for
the periods indicated (except, with respect to the unaudited
financial statements, for certain normal recurring adjustments),
and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved. No other financial statements or supporting
schedules are required to be included in the Registration
Statement. The financial data set forth in the most recent
Preliminary Prospectus under the captions “Prospectus
Summary—Summary Selected Financial Data”,
“Selected Financial Data” and
“Capitalization” fairly present the information set
forth therein on a basis consistent with that of the audited
financial statements contained in the Registration
Statement.
(r) Ernst
& Young LLP, who have certified certain financial statements of
the Company, whose report appears in the most recent Preliminary
Prospectus and who have delivered the initial letter referred to in
Section 7(e) hereof, are
6
independent
public accountants as required by the Securities Act and the Rules
and Regulations.
(s) The
Company and each of its subsidiaries have good and marketable title
in fee simple to all real property and good and valid title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except such as are described in
the most recent Preliminary Prospectus or such as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and all assets held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries.
(t) The
Company and each of its subsidiaries are insured by recognized,
financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as are
adequate in accordance with reasonable business judgment to protect
the Company and its subsidiaries and their respective businesses
including, but not limited to, policies covering real and personal
property owned or leased by the Company and its subsidiaries
against theft, damage, destruction, acts of vandalism and
earthquakes; and all such insurance will be outstanding and in
force at each Delivery Date (as hereinafter defined).
(u) The
Company and each of its subsidiaries own or possess adequate rights
to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights and licenses necessary for the conduct of
their respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have
not received any notice of any claim of conflict with, any such
rights of others. The Company is not a party to or bound by any
options, licenses or agreements with respect to the intellectual
property rights of any other person or entity that are required to
be set forth in the most recent Preliminary Prospectus and are not
so described.
(v) Except
as described in the most recent Preliminary Prospectus, there are
no material legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would result in a material adverse effect on the
management, consolidated financial position, stockholders’
equity, results of operations, business or prospects of the Company
and its subsidiaries, taken as a whole (a “ Material
Adverse Effect ”); and to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(w) The
Company and each subsidiary possess such valid and current
certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary
to conduct their respective businesses, and
7
neither the
Company nor any subsidiary has received any notice of proceedings
relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse
Effect.
(x) There
are no contracts or other documents that are required to be
described in the most recent Preliminary Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations that have not been described in the most
recent Preliminary Prospectus or filed as exhibits to the
Registration Statement.
(y) No
relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers, suppliers or other related parties of the Company on the
other hand, which is required to be described in the most recent
Preliminary Prospectus or the Prospectus that is not so
described.
(z) No
labor disturbance by the employees of the Company exists or, to the
knowledge of the Company, is imminent, which would result in a
Material Adverse Effect.
(aa) The
Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ ERISA
”); no “ reportable event ” (as defined in
ERISA) has occurred with respect to any “ pension plan
” (as defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “ pension plan
” or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the “ Code
”); and each “ pension plan ” for which
the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such
qualification.
(bb) The
Company has filed all federal, state and local income and franchise
tax returns required to be filed through the date hereof (taking
into account permitted extensions) and has paid all taxes due
thereon, and no tax deficiency has been determined adversely to the
Company or any of its subsidiaries which has had (nor does the
Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries,
would result in) a Material Adverse Effect.
(cc) Since
the date as of which information is given in the most recent
Preliminary Prospectus through the date hereof, and except as may
otherwise be disclosed in the most recent Preliminary Prospectus,
the Company has not, except pursuant to the Reincorporation Merger,
(i) issued or granted any securities,
(ii) incurred
8
any liability
or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business,
(iii) entered into any transaction not in the ordinary course
of business or (iv) declared or paid any dividend on its
capital stock.
(dd) The
Company maintains internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are
executed in accordance with management’s general or specific
authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements in accordance with
United Stated generally accepted accounting principles and to
maintain accountability for its assets, (C) access to its
assets is permitted only in accordance with management’s
general or specific authorization, and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(ee) Neither
the Company nor any of its subsidiaries (i) is in violation of
its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other material 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) is in violation in any material
respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject
or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its
business.
(ff) Neither
the Company nor any of its subsidiaries, nor, to the knowledge of
the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its
subsidiaries, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(gg) There
has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or
any of its subsidiaries (or, to the knowledge of the Company, any
of their predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not result in,
individually or in the aggregate with all such violations and
remedial actions, a Material Adverse Effect; there has been no
material spill, discharge, leak, emission, injection, escape,
dumping or release of any
9
kind onto such
property or into the environment surrounding such property of any
toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of its
subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would
not result in, individually or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings
and releases, a Material Adverse Effect; and the terms “
hazardous wastes ”, “ toxic wastes
”, “ hazardous substances ” and “
medical wastes ” shall have the meanings specified in
any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(hh) Neither
the Company nor any of its subsidiaries is, or, as of the
applicable Delivery Date after giving effect to the application of
the net proceeds from the sale of the Stock as described in the
most recent Preliminary Prospectus, will be, (i) an
“investment company” as defined in the Investment
Company Act of 1940, as amended (the “ Investment Company
Act ”), and the rules and regulations of the Commission
thereunder, or (ii) a “business development
company” (as defined in Section 2(a)(48) of the
Investment Company Act).
(ii) The
Company has delivered or made available to the Underwriters or to
counsel to the Underwriters true and complete copies of each
document (or summaries of same) that has been requested by the
Underwriters or by counsel to the Underwriters in connection with
preparation and filing of the Registration Statement or the sale of
the Stock hereunder.
(jj) The
Company is not aware of (i) any significant deficiency or
material weakness in the design or operation of internal controls
over financial reporting which would adversely affect the
Company’s ability to record, process, summarize and report
financial information; or (ii) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company’s internal controls over
financial reporting.
(kk) There
have been no significant adverse changes in internal controls or in
other factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
(ll) 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 will 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.
10
(mm) The
Company is in compliance in all material respects with all
presently effective and applicable provisions of the Sarbanes Oxley
Act of 2002 (the “ Sarbanes Oxley Act ”) and is
actively taking steps to ensure that it will be in compliance in
all material respects with other provisions of the Sarbanes Oxley
Act upon the effectiveness or applicability to the Company of such
provisions.
(nn) The
operations of the Company and its subsidiaries are and have been
conducted at all times in material compliance with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “ Money Laundering
Laws ”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened, except, in each case, as
would not reasonably be expected to have a Material Adverse
Effect.
(oo) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“ OFAC ”); and
the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(pp) 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.A(h) or 5.A(a)(vi), any Issuer Free Writing
Prospectus set forth on Schedule 3 hereto, and, in connection
with the Directed Share Program described in Section 4, the
enrollment materials prepared by Lehman Brothers Inc.
(qq) The
Common Stock has been approved for inclusion on the Nasdaq National
Market, subject only to official notice of issuance.
(rr) Each
Preliminary Prospectus, the Prospectus and each Issuer Free Writing
Prospectus comply, and any further amendments or supplements
thereto will comply, with any applicable laws or regulations of
foreign jurisdictions in which such Preliminary Prospectus,
Prospectus or such Issuer Free Writing Prospectus, as amended or
supplemented, if applicable, are distributed in connection with the
Directed Share Program. No consent, approval, authorization or
order of, or filing or registration with, any court or governmental
agency or body, other than such as have been obtained,
is
11
required under
the securities laws and regulations of any foreign jurisdiction in
which the Directed Shares are offered or sold outside the United
States.
(ss) The
Company has not offered, or caused Lehman Brothers Inc. to offer,
Stock to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer’s or
supplier’s level or type of business with the Company or
(ii) a trade journalist or publication to write or publish
favorable information about the Company, its business or its
products.
SECTION 1.B
Representations, Warranties and Agreements of the Selling
Stockholders . Each Selling Stockholder severally
represents, warrants and agrees that:
(a) Neither
the Selling Stockholder nor any person acting on behalf of the
Selling Stockholder (other than, if applicable, the Company and the
Underwriters) has used or referred to any “free writing
prospectus” (as defined in Rule 405), relating to the
Stock;
(b) The
Selling Stockholder has, and immediately prior to any Delivery Date
on which the Selling Stockholder is selling shares of Stock, the
Selling Stockholder will have good and valid title to, or a valid
“security entitlement” within the meaning of
Section 8-501 of the New York Uniform Commercial Code (the
“ UCC ”) the shares of Stock to be sold by the
Selling Stockholder hereunder on such Delivery Date, free and clear
of all liens, encumbrances, equities or claims; and upon delivery
of such shares and payment therefor pursuant hereto, good and valid
title to such shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several
Underwriters.
(c) The
Selling Stockholder has placed in custody under a custody agreement
(the “ Custody Agreement ” and, together with
all other similar agreements executed by the other Selling
Stockholders, the “ Custody Agreements ”) with
the Company, as custodian (the “ Custodian ”),
for delivery under this Agreement, certificates in negotiable form
(with signature guaranteed by a commercial bank or trust company
having an office or correspondent in the United States or a member
firm of the New York or American Stock Exchanges) representing the
shares of Stock to be sold by the Selling Stockholder
hereunder.
(d) The
Selling Stockholder has duly and irrevocably executed and delivered
a power of attorney (the “ Power of Attorney ”
and, together with all other similar agreements executed by the
other Selling Stockholders, the “ Powers of Attorney
”) appointing Stephen J. Hawrysz and one or more other
persons, as attorneys-in-fact, with full power of substitution, and
with full authority (exercisable by any one or more of them) to
execute and deliver this Agreement and to take such other action as
may be necessary or desirable to carry out the provisions hereof on
behalf of the Selling Stockholder.
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(e) The
Selling Stockholder has power and authority under its limited
partnership or similar organization agreement to enter into this
Agreement, the Power of Attorney and the Custody Agreement; this
Agreement has been duly and validly authorized, executed and
delivered by or on behalf of the Selling Stockholder; the
execution, delivery and performance of this Agreement, the Power of
Attorney and the Custody Agreement by the Selling Stockholder and
the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby will not conflict with or result in
a material breach or violation of any of the terms or provisions
of, or constitute a material default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Selling Stockholder is a party or by which
the Selling Stockholder is bound or to which any of the property or
assets of the Selling Stockholder is subject, nor will such actions
result in any violation of any of its organizational documents (in
the case of non-individual Selling Stockholders) or any material
violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Selling Stockholder or the property or assets of the Selling
Stockholder; and, 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
Exchange Act, by the National Association of Securities Dealers,
Inc. and under applicable state securities laws in connection with
the purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody Agreement by the
Selling Stockholder and the consummation by the Selling Stockholder
of the transactions contemplated hereby and thereby.
(f) The
Stock to be sold by the Selling Stockholder hereunder, which is
represented by the certificates held in custody for the Selling
Stockholder, is subject to the interest of the Underwriters, the
arrangements made by the Selling Stockholder for such custody are
to that extent irrevocable, and the obligations of the Selling
Stockholder hereunder shall not be terminated by any act of the
Selling Stockholder, by operation of law, by the death or
incapacity of any individual Selling Stockholder or, in the case of
a trust, by the death or incapacity of any executor or trustee or
the termination of such trust, or the occurrence of any other
event.
(g) The
Selling Stockholder is not prompted to sell shares of Common Stock
by any information concerning the Company that is not set forth in
the Pricing Disclosure Package.
(h) The
Selling Stockholder has not taken and will not take, directly or
indirectly, any action which is designed to or which has
constituted or which might 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.
SECTION 2.
Purchase of the Stock by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the
terms and conditions of,
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this Agreement,
the Company agrees to sell 6,130,000 shares of the Firm Stock and
each Selling Stockholder hereby agrees to sell the number of shares
of the Firm Stock set opposite its name in Schedule 2 hereto,
severally and not jointly, to the several Underwriters and each of
the Underwriters, severally and not jointly, agrees to purchase the
number of shares of the Firm Stock to be sold by the Company and by
each Selling Stockholder set forth opposite that
Underwriter’s name in Schedules 1 and 2 hereto. The
respective purchase obligations of the Underwriters with respect to
the Firm Stock shall be rounded among the Underwriters to avoid
fractional shares, as the Representatives may determine.
In
addition, the Company grants to the Underwriters an option to
purchase up to 975,000 shares of Option Stock. Such option is
granted for the purpose of covering over-allotments in the sale of
Firm Stock and is exercisable as provided in Section 4 hereof.
Shares of Option Stock shall be purchased severally for the account
of the Underwriters in proportion to the number of shares of Firm
Stock set forth opposite the name of such Underwriters in
Schedule 1 hereto. The respective purchase obligations of each
Underwriter with respect to the Option Stock shall be adjusted by
the Representatives so that no Underwriter shall be obligated to
purchase Option Stock other than in 100 share amounts.
The
price of both the Firm Stock and any Option Stock shall be $
[ ] per
share.
The
Company and the Selling Stockholders shall not be obligated to
deliver any of the Stock to be delivered on any Delivery Date (as
hereinafter defined), except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
SECTION 3.
Offering of Stock by the Underwriters. Upon authorization by
the Representatives of the release of the Firm Stock, the several
Underwriters propose to offer the Firm Stock for sale upon the
terms and conditions to be set forth in the Prospectus.
It
is understood that approximately 325,000 shares of the Firm Stock
(the “ Directed Shares ”) will initially be
reserved by the several Underwriters for offer and sale upon the
terms and conditions to be set forth in the Prospectus and in
accordance with the rules and regulations of the National
Association of Securities Dealers, Inc. (the “ NASD
”) to employees of the
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