EXHIBIT 1.1
CPI INTERNATIONAL, INC.
[___] Shares
Common Stock
($0.01 par value per Share)
UNDERWRITING AGREEMENT
[
], 2006
UNDERWRITING AGREEMENT
[
], 2006
UBS Securities LLC
Bear, Stearns & Co. Inc.
Banc of America Securities LLC
Wachovia Capital Markets, LLC
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
CPI International, Inc., a Delaware corporation (the "Company"),
proposes
to issue and sell, and each person or entity (each, a "Selling
Stockholder")
identified as a Selling Stockholder in Schedule C annexed hereto,
proposes to
sell, to the underwriters named in Schedule A annexed hereto (the
"Underwriters"), for whom you are acting as representatives, an
aggregate of [ ]
shares (the "Firm Shares") of common stock, $0.01 par value per
share (the
"Common Stock"), of the Company, of which [ ] Firm Shares are to be
issued and
sold by the Company and [ ] Firm Shares are to be sold by the
Selling
Stockholders. The number of Firm Shares to be sold by each Selling
Stockholder
is the number of Firm Shares set forth opposite the name of such
Selling
Stockholder in Schedule C annexed hereto. In addition, solely for
the purpose of
covering over-allotments, the Company and the Selling Stockholders
propose to
grant to the Underwriters the option to purchase from the Company
and the
Selling Stockholders up to an additional [ ] shares of Common Stock
(the
"Additional Shares"), of which up to [ ] Additional Shares are to
be issued and
sold by the Company and up to [ ] Additional Shares are to be sold
by the
Selling Stockholders. The Firm Shares and the Additional Shares are
hereinafter
collectively sometimes referred to as the "Shares." The Shares are
described in
the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the
provisions of
the Securities Act of 1933, as amended, and the rules and
regulations thereunder
(collectively, the "Act"), with the Securities and Exchange
Commission (the
"Commission") a registration statement on Form S-1 (File No.
333-130662) under
the Act, including a prospectus, relating to the Shares.
Except where the context otherwise requires, "Registration
Statement," as
used herein, means the registration statement, as amended at the
time of such
registration statement's effectiveness for purposes of Section 11
of the Act, as
such section applies to the respective Underwriters (the "Effective
Time"),
including (i) all documents filed as a part thereof, (ii) any
information
contained in a prospectus filed with the Commission pursuant to
Rule 424(b)
under the Act and deemed, pursuant to Rule 430A or Rule 430C under
the Act, to
be part of the registration statement at the Effective Time, and
(iii) any
registration statement filed to register the offer and sale of
Shares pursuant
to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and
by
dealers in connection with the offering of the Shares, copies of
one or more
preliminary prospectuses relating to the Shares. Except where the
context
otherwise requires, "Preliminary Prospectus," as used herein, means
each such
preliminary prospectus, in the form so furnished.
Except where the context otherwise requires, "Prospectus," as used
herein,
means the prospectus filed by the Company with the Commission
pursuant to Rule
424(b) under the Act on or before the second business day after the
date hereof
(or such earlier time as may be required under the Act), or, if no
such filing
is required, the final prospectus included in the Registration
Statement at the
time it became effective under the Act, in each case in the form
furnished by
the Company to you for use by the Underwriters and by dealers in
connection with
the offering of the Shares.
"Permitted Free Writing Prospectuses," as used herein, means the
documents
listed on Schedule B attached hereto and each "road show" (as
defined in Rule
433 under the Act), if any, related to the offering of the Shares
contemplated
hereby that is a "written communication" (as defined in Rule 405
under the Act)
(each such road show, a "Road Show").
"Disclosure Package," as used herein, means any Preliminary
Prospectus
together with any combination of one or more of the Permitted Free
Writing
Prospectuses, if any.
As used in this Agreement, "business day" shall mean a day on which
the New
York Stock Exchange (the "NYSE") is open for trading. The terms
"herein,"
"hereof," "hereto," "hereinafter" and similar terms, as used in
this Agreement,
shall in each case refer to this Agreement as a whole and not to
any particular
section, paragraph, sentence or other subdivision of this
Agreement. The term
"or," as used herein, is not exclusive.
The Company has prepared and filed, in accordance with Section 12
of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations
thereunder (collectively, the "Exchange Act"), a registration
statement (as
amended, the "Exchange Act Registration Statement") on Form 8-A
(File No.
[____]) under the Exchange Act to register, under Section 12(b) of
the Exchange
Act, the class of securities consisting of the Common Stock.
The Company, each of the Selling Stockholders and the Underwriters
agree as
follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties
and subject to the terms and conditions herein set forth, the
Company agrees to
issue and sell, and each of the Selling Stockholders agrees to
sell, in each
case severally and not jointly, to the respective Underwriters and
each of the
Underwriters, severally and not jointly, agrees to purchase from
the Company and
each Selling Stockholder, the respective number of Firm Shares
(subject to such
adjustment as UBS Securities LLC ("UBS") may determine to avoid
fractional
shares) which bears the same proportion to the total number of Firm
Shares to be
sold by the Company or by such Selling Stockholder, as the case may
be, as the
number of Firm Shares set forth opposite the name of such
Underwriter in
Schedule A annexed hereto, subject to adjustment in accordance with
Section 11
hereof, bears to the total number of Firm Shares, in each case at a
purchase
price of $[ ] per share. The Company is advised by you that the
Underwriters
intend (i) to make a
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public offering of their respective portions of the Firm Shares as
soon after
the effective date of the Registration Statement as in your
judgment is
advisable and (ii) initially to offer the Firm Shares upon the
terms set forth
in the Prospectus. You may from time to time increase or decrease
the public
offering price after the initial public offering to such extent as
you may
determine.
In addition, the Company and the Selling Stockholders, in each case
severally and not jointly, hereby grant to the several Underwriters
the option
(the "Over-Allotment Option") to purchase, and upon the basis of
the
representations and warranties and subject to the terms and
conditions herein
set forth, the Underwriters shall have the right to purchase,
severally and not
jointly, from the Company and the Selling Stockholders, ratably in
accordance
with the number of Firm Shares to be purchased by each of them, all
or a portion
of the Additional Shares as may be necessary to cover
over-allotments made in
connection with the offering of the Firm Shares, at the same
purchase price per
share to be paid by the Underwriters to the Company and the Selling
Stockholders
for the Firm Shares. The Over-Allotment Option may be exercised by
UBS on behalf
of the several Underwriters at any time and from time to time on or
before the
thirtieth day following the date of the Prospectus, by written
notice to the
Company and the Selling Stockholders. Such notice shall set forth
the aggregate
number of Additional Shares as to which the Over-Allotment Option
is being
exercised and the date and time when the Additional Shares are to
be delivered
(any such date and time being herein referred to as an "additional
time of
purchase"); provided, however, that no additional time of purchase
shall be
earlier than the "time of purchase" (as defined below) nor earlier
than the
second business day after the date on which the Over-Allotment
Option shall have
been exercised nor later than the tenth business day after the date
on which the
Over-Allotment Option shall have been exercised. The number of
Additional Shares
to be sold to each Underwriter shall be the number which bears the
same
proportion to the aggregate number of Additional Shares being
purchased as the
number of Firm Shares set forth opposite the name of such
Underwriter on
Schedule A hereto bears to the total number of Firm Shares
(subject, in each
case, to such adjustment as UBS may determine to eliminate
fractional shares),
subject to adjustment in accordance with Section 11 hereof. Upon
any exercise of
the Over-Allotment Option, the number of Additional Shares to be
purchased from
the Company shall be the number which bears the same proportion to
the aggregate
number of Additional Shares being purchased as [ ] bears to [ ],
and the number
of Additional Shares to be purchased from each Selling Stockholder
shall be the
number which bears the same proportion to the aggregate number of
Additional
Shares being purchased as the number of Additional Shares set forth
opposite the
name of such Selling Stockholder in Schedule C annexed hereto bears
to [ ],
subject, in each case, to such adjustment as UBS may determine
solely to
eliminate fractional shares.
Pursuant to powers of attorney (the "Powers of Attorney") granted
by each
Selling Stockholder (which Powers of Attorney shall be satisfactory
to UBS and
Bear, Stearns & Co. Inc. ("Bear")), Banc of America Securities
LLC and Wachovia
Capital Markets, LLC shall act as representatives of the Selling
Stockholders.
Each of the foregoing representatives (collectively, the
"Representatives of the
Selling Stockholders") is authorized, on behalf of each Selling
Stockholder,
among other things, to execute any documents necessary or desirable
in
connection with the sale of the Shares to be sold hereunder by such
Selling
Stockholder, to make delivery of the certificates of such Shares,
to receive the
proceeds of the sale of such Shares, to give receipts for
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such proceeds, to pay therefrom the expenses to be borne by such
Selling
Stockholder in connection with the sale and public offering of the
Shares, to
distribute the balance of such proceeds to such Selling
Stockholder, to receive
notices on behalf of such Selling Stockholder and to take such
other action as
may be necessary or desirable in connection with the transactions
contemplated
by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares
shall be made to the Company and to each Selling Stockholder by
Federal Funds
wire transfer against delivery of the certificates for the Firm
Shares to you
through the facilities of The Depository Trust Company ("DTC") for
the
respective accounts of the Underwriters. Such payment and delivery
shall be made
at 10:00 A.M., New York City time, on [ ], 2006 (unless another
time shall be
agreed to by you and the Company and any Representative of the
Selling
Stockholders or unless postponed in accordance with the provisions
of Section 11
hereof). The time at which such payment and delivery are to be made
is
hereinafter sometimes called "the time of purchase." Electronic
transfer of the
Firm Shares shall be made to you at the time of purchase in such
names and in
such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be
made
at the additional time of purchase in the same manner and at the
same office as
the payment for the Firm Shares. Electronic transfer of the
Additional Shares
shall be made to you at the additional time of purchase in such
names and in
such denominations as you shall specify.
Deliveries of the documents described in Section 9 hereof with
respect
to the purchase of the Shares shall be made at the offices of
Cahill Gordon &
Reindel LLP at 80 Pine Street, New York, New York 10005, at 9:00
A.M., New York
City time, on the date of the closing of the purchase of the Firm
Shares or the
Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company
represents
and warrants to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective
under
the Act or, with respect to any registration statement to be filed
to
register the offer and sale of Shares pursuant to Rule 462(b) under
the
Act, will be filed with the Commission and become effective under
the Act
no later than 10:00 P.M., New York City time, on the date of
determination
of the public offering price for the Shares; no stop order of the
Commission preventing or suspending the use of any Preliminary
Prospectus
or Permitted Free Writing Prospectus or the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose
have been instituted or, to the Company's knowledge, are
contemplated by
the Commission; the Exchange Act Registration Statement has become
effective as provided in Section 12 of the Exchange Act;
(b) the Registration Statement complied when it became effective,
complies as of the date hereof and, as amended or supplemented, at
the time
of purchase, each additional time of purchase, if any, and at all
times
during which a prospectus is required by the Act to be delivered
(whether
physically or through compliance with Rule 172 under the Act or any
similar
rule) in connection with any sale of Shares, will comply, in all
material
respects, with the requirements of the Act; the Registration
Statement did
not, as of
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the Effective Time, contain an untrue statement of a material fact
or omit
to state a material fact required to be stated therein or necessary
to make
the statements therein not misleading; each Preliminary Prospectus
complied, at the time it was filed with the Commission, and
complies as of
the date hereof, in all material respects with the requirements of
the Act;
at no time during the period that begins on the earlier of the date
of such
Preliminary Prospectus and the date such Preliminary Prospectus was
filed
with the Commission and ends at the time of purchase did or will
any
Preliminary Prospectus, as then amended or supplemented, include an
untrue
statement of a material fact or omit to state a material fact
necessary in
order to make the statements therein, in the light of the
circumstances
under which they were made, not misleading, and at no time during
such
period did or will any Preliminary Prospectus, as then amended or
supplemented, together with any combination of one or more of the
then
issued Permitted Free Writing Prospectuses, if any, include an
untrue
statement of a material fact or omit to state a material fact
necessary in
order to make the statements therein, in the light of the
circumstances
under which they were made, not misleading; the Prospectus will
comply, as
of its date, the date that it is filed with the Commission, the
time of
purchase, each additional time of purchase, if any, and at all
times during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar
rule) in connection with any sale of Shares, in all material
respects, with
the requirements of the Act (including, without limitation, Section
10(a)
of the Act); at no time during the period that begins on the
earlier of the
date of the Prospectus and the date the Prospectus is filed with
the
Commission and ends at the later of the time of purchase, the
latest
additional time of purchase, if any, and the end of the period
during which
a prospectus is required by the Act to be delivered (whether
physically or
through compliance with Rule 172 under the Act or any similar rule)
in
connection with any sale of Shares did or will the Prospectus, as
then
amended or supplemented, include an untrue statement of a material
fact or
omit to state a material fact necessary in order to make the
statements
therein, in the light of the circumstances under which they were
made, not
misleading; at no time during the period that begins on the date of
such
Permitted Free Writing Prospectus and ends at the time of purchase
did or
will any Permitted Free Writing Prospectus include an untrue
statement of a
material fact or omit to state a material fact necessary in order
to make
the statements therein, in the light of the circumstances under
which they
were made, not misleading; provided, -------- however, that the
Company
makes no representation or warranty with respect to any statement
contained
in the Registration Statement, any Preliminary Prospectus, the
Prospectus
or any Permitted Free Writing Prospectus in reliance upon and in
conformity
with information concerning an Underwriter and furnished in writing
by or
on behalf of such Underwriter through you to the Company expressly
for use
in the Registration Statement, such Preliminary Prospectus, the
Prospectus
or such Permitted Free Writing Prospectus;
(c) prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Shares by means of any
"prospectus" (within the meaning of the Act) or used any
"prospectus"
(within the meaning of the Act) in connection with the offer or
sale of the
Shares, in each case other than the Preliminary Prospectuses and
the
Permitted Free Writing Prospectuses, if any; the Company has not,
directly
or indirectly, prepared, used or referred to any Permitted Free
Writing
Prospectus except in
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compliance with Rules 164 and 433 under the Act; assuming that such
Permitted Free Writing Prospectus is accompanied or preceded by the
most
recent Preliminary Prospectus that contains a price range or the
Prospectus, as the case may be, and that such Permitted Free
Writing
Prospectus is so sent or given after the Registration Statement was
filed
with the Commission (and after such Permitted Free Writing
Prospectus was,
if required pursuant to Rule 433(d) under the Act, filed with the
Commission), the sending or giving, by any Underwriter, of any
Permitted
Free Writing Prospectus will satisfy the provisions of Rule 164 or
Rule 433
(without reliance on subsections (b), (c) and (d) of Rule 164); the
Preliminary Prospectus dated [ ], 2006 is a prospectus that, other
than by
reason of Rule 433 or Rule 431 under the Act, satisfies the
requirements of
Section 10 of the Act, including a price range where required by
rule;
neither the Company nor the Underwriters are disqualified, by
reason of
subsection (f) or (g) of Rule 164 under the Act, from using, in
connection
with the offer and sale of the Shares, "free writing prospectuses"
(as
defined in Rule 405 under the Act) pursuant to Rules 164 and 433
under the
Act; the Company is not an "ineligible issuer" (as defined in Rule
405
under the Act) as of the eligibility determination date for
purposes of
Rules 164 and 433 under the Act with respect to the offering of the
Shares
contemplated by the Registration Statement; the parties hereto
agree and
understand that the content of any and all "road shows" (as defined
in Rule
433 under the Act) related to the offering of the Shares
contemplated
hereby is solely the property of the Company; the Company has
caused there
to be made available at least one version of a "bona fide
electronic road
show" (as defined in Rule 433 under the Act) in a manner that,
pursuant to
Rule 433(d)(8)(ii) under the Act, causes the Company not to be
required,
pursuant to Rule 433(d) under the Act, to file, with the
Commission, any
Road Show;
(d) the Company has the authorized and outstanding capitalization
as
set forth in the sections of the Registration Statement, the
Preliminary
Prospectuses and the Prospectus entitled "Capitalization" and
"Description
of capital stock" (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus), and, as of the
time of
purchase and any additional time of purchase, as the case may be,
the
Company shall have an authorized and outstanding capitalization as
set
forth in the sections of the Registration Statement and the
Prospectus
entitled "Capitalization" and "Description of capital stock" (and
any
similar sections or information, if any, contained in any Permitted
Free
Writing Prospectus) (subject, in each case, to the issuance of
shares of
Common Stock upon exercise of stock options and warrants disclosed
as
outstanding in the Registration Statement (excluding the exhibits
thereto),
each Preliminary Prospectus and the Prospectus and the grant of
options
under existing stock option plans described in the Registration
Statement
(excluding the exhibits thereto), each Preliminary Prospectus and
the
Prospectus). All of the issued and outstanding equity interests,
including
shares of Common Stock, of the Company have been duly authorized
and
validly issued, are fully paid and nonassessable and were not
issued in
violation of any preemptive right, resale right, right of first
refusal or
similar right. Attached as Schedule D is a true and complete list
of each
entity in which the Company has a direct or indirect majority
equity or
voting interest (each, a "Subsidiary" and, together, the
"Subsidiaries"),
their jurisdictions of organization, names of their equityholder(s)
and
percentage held by each equityholder. All of the issued and
outstanding
equity interests of each Subsidiary have been duly authorized
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and validly issued, are fully paid and nonassessable, were not
issued in
violation of any preemptive or similar right and, except as set
forth in
the Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus and the Prospectus, are owned, directly or
indirectly through Subsidiaries, by the Company free and clear of
all liens
(other than transfer restrictions imposed by the Act, the
securities or
Blue Sky laws of certain jurisdictions). Except as set forth in the
Registration Statement (excluding the exhibits thereto), each
Preliminary
Prospectus and the Prospectus, there are no outstanding options,
warrants
or other rights to acquire or purchase, or instruments convertible
into or
exchangeable for, any equity interests of the Company or any of the
Subsidiaries.
(e) prior to the date hereof, the Company has duly effected and
completed a 3.059-for-1 stock split of the Common Stock in the
manner
described in the Registration Statement (excluding the exhibits
thereto),
each Preliminary Prospectus and the Prospectus; and the Amended and
Restated Certificate of Incorporation of the Company and the
Amended and
Restated Bylaws of the Company, each in the form filed as an
exhibit to the
Registration Statement, have been heretofore duly authorized and
approved
in accordance with the General Corporation Law of the State of
Delaware and
shall become effective and in full force and effect at or before
the time
of purchase; the Shares are duly listed, and admitted and
authorized for
trading, subject to official notice of issuance and evidence of
satisfactory distribution, on the Nasdaq National Market (the
"NASDAQ");
(f) the Company has been duly incorporated and is validly existing
as
a corporation in good standing under the laws of the State of
Delaware,
with full corporate power and authority to own, lease and operate
its
properties and conduct its business as described in the
Registration
Statement, the Preliminary Prospectuses, the Prospectus and the
Permitted
Free Writing Prospectuses, if any, to execute and deliver this
Agreement
and to issue, sell and deliver the Shares to be sold by it pursuant
hereto
as contemplated herein;
(g) each of the Company and each Subsidiary (A) is a corporation,
limited liability company, partnership or other entity duly
incorporated or
organized, as the case may be, and validly existing under the laws
of the
jurisdiction of its incorporation or organization; (B) has all
requisite
corporate or other power and authority necessary to own its
property and
carry on its business as now being conducted; and (C) is qualified
to do
business and is in good standing in all jurisdictions in which the
nature
of the business conducted by it or its ownership of property makes
such
qualification necessary, except where the failure to be so
qualified and be
in good standing, individually or in the aggregate, could not
reasonably be
expected to have a Material Adverse Effect. A "Material Adverse
Effect"
means (x) a material adverse effect on the business, condition
(financial
or other), results of operations, performance, properties or
prospects of
the Company and the Subsidiaries, taken as a whole, (y) an adverse
effect
on the ability to consummate the transactions on a timely basis or
(z) an
effect that would prevent the shares of Common Stock from being
accepted
for listing on, or result in the delisting of shares of Common
Stock from,
the NASDAQ;
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(h) other than the capital stock of the Subsidiaries, the Company
does
not own, directly or indirectly, any shares of stock or any other
equity
interests or long-term debt securities of any corporation, firm,
partnership, joint venture, association or other entity (other than
mutual
funds with a fair market value of less than $200,000 for purposes
of
funding a non-qualified deferred compensation plan); complete and
correct
copies of the charters and the bylaws of the Company and each
Subsidiary
and all amendments thereto have been delivered to you, and, except
as set
forth in the exhibits to the Registration Statement, no changes
therein
will be made on or after the date hereof through and including the
time of
purchase or, if later, any additional time of purchase;
(i) the Shares to be sold by the Company pursuant hereto have been
duly and validly authorized and, when issued and delivered against
payment
therefor as provided herein, will be duly and validly issued, fully
paid
and non-assessable and free of statutory and contractual preemptive
rights,
resale rights, rights of first refusal and similar rights; the
Shares to be
sold by the Company pursuant hereto, when issued and delivered
against
payment therefor as provided herein, will be free of any
restriction upon
the voting or transfer thereof pursuant to the Company's charter or
bylaws
or any agreement or other instrument to which the Company is a
party; the
Shares to be sold by the Selling Stockholders pursuant hereto have
been
duly and validly authorized and issued and are and, after they are
delivered against payment therefor as provided herein, will be
fully paid,
non-assessable and free of statutory and contractual preemptive
rights,
resale rights, rights of first refusal and similar rights; the
Shares to be
sold by the Selling Stockholders pursuant hereto are and, after
they are
delivered against payment therefor as provided herein, will be free
of any
restriction upon the voting or transfer thereof pursuant to the
Company's
charter or bylaws or any agreement or other instrument to which the
Company
is a party;
(j) the capital stock of the Company, including the Shares,
conforms
in all material respects to each description thereof, if any,
contained in
the Registration Statement, any Preliminary Prospectuses, the
Prospectus or
any Permitted Free Writing Prospectus; and the certificates for the
Shares
are in due and proper form;
(k) this Agreement has been duly authorized, executed and delivered
by
the Company;
(l) neither the Company nor any Subsidiary is (A) in violation of
its
charter, bylaws or other similar constitutive documents, (B) in
default
(or, with notice or lapse of time or both, would be in default) in
the
performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note, indenture,
mortgage, deed
of trust, loan or credit agreement, lease, license, franchise
agreement,
authorization, permit, certificate or other agreement or instrument
(collectively, the "Agreements and Instruments") to which the
Company or
any Subsidiary is a party or by which any of them is bound or to
which any
of their assets or properties is subject, or (C) in violation of
any law,
statute, rule or regulation or any judgment, order or decree of any
domestic or foreign court or other governmental or regulatory
authority
(including, without limitation, the NASDAQ), agency or other body
with
jurisdiction over any of them or any of their assets or properties
("Governmental Authority"), except, in the case
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of clauses (B) and (C), for such defaults or violations that are
disclosed
in the Registration Statement (excluding the exhibits thereto),
each
Preliminary Prospectus and the Prospectus or as could not
reasonably be
expected to have, individually or in the aggregate, a Material
Adverse
Effect;
(m) except, in the case of clauses (ii) and (iii), as could not
reasonably be expected to have a Material Adverse Effect, the
execution,
delivery and performance of this Agreement, the issuance and sale
of the
Shares to be sold by the Company pursuant hereto, the sale of the
Shares to
be sold by the Selling Stockholders pursuant hereto and the
consummation of
the transactions contemplated hereby will not (i) violate the
charter,
bylaws or other constitutive documents of the Company, (ii)
conflict with
or constitute a breach of or a default under (or an event that with
notice
or the lapse of time, or both, would constitute a default), or
require
consent under, or result in the creation or imposition of a lien,
charge or
encumbrance on any property or assets of the Company or any
Subsidiary
(other than as described in the Registration Statement (excluding
the
exhibits thereto), each Preliminary Prospectus and the Prospectus)
under
any of the Agreements and Instruments, (iii) violate any law,
statute, rule
or regulation or any judgment, order or decree of any Governmental
Authority or (iv) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority
(including,
without limitation, the rules and regulations of the NASDAQ.
(n) no approval, authorization, consent or order of or filing with
any
federal, state, local or foreign governmental or regulatory
commission,
board, body, authority or agency, or of or with any self-regulatory
organization or other non-governmental regulatory authority
(including,
without limitation, the NASDAQ, or approval of the stockholders of
the
Company, is required in connection with the issuance and sale of
the Shares
to be sold by the Company pursuant hereto, the sale of the Shares
to be
sold by the Selling Stockholders pursuant hereto or the
consummation of the
transactions contemplated hereby, other than (i) registration of
the Shares
under the Act, which has been effected (or, with respect to any
registration statement to be filed hereunder pursuant to Rule
462(b) under
the Act, will be effected in accordance herewith), (ii) any
necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters or
(iii) under the Conduct Rules of the National Association of
Securities
Dealers, Inc. (the "NASD");
(o) except as described in the Registration Statement (excluding
the
exhibits thereto), each Preliminary Prospectus and the Prospectus,
(i) no
person has the right, contractual or otherwise, to cause the
Company to
issue or sell to it any shares of Common Stock or shares of any
other
capital stock or other equity interests of the Company, (ii) no
person has
any preemptive rights, resale rights, rights of first refusal or
other
rights to purchase any shares of Common Stock or shares of any
other
capital stock of or other equity interests in the Company, (iii) no
person
has the right to act as an underwriter or as a financial advisor to
the
Company in connection with the offer and sale of the Shares, and
(iv) no
person has the right, contractual or otherwise, to cause the
Company to
register under the Act any shares of Common Stock or shares of any
other
capital stock of or
-9-
other equity interests in the Company, or to include any such
shares or
interests in the Registration Statement or the offering
contemplated
thereby;
(p) except as set forth in the Registration Statement (excluding
the
exhibits thereto), each Preliminary Prospectus and the Prospectus,
the
Company and the Subsidiaries have (A) all licenses, certificates,
permits,
authorizations, approvals, franchises and other rights from, and
have made
all declarations and filings with, all applicable Governmental
Authorities
and all self-regulatory authorities (each, an "AUTHORIZATION")
necessary to
engage in the business conducted by them in the manner described in
the
Registration Statement, any Preliminary Prospectus, the Prospectus
or any
Permitted Free Writing Prospectus, except where the failure to hold
such
Authorizations could not, individually or in the aggregate, be
reasonably
expected to have a Material Adverse Effect, and (B) no reason to
believe
that any Governmental Authority or self-regulatory authority is
considering
or threatening limiting, suspending or revoking any such
Authorization,
except where such limitation, suspension or revocation could not,
individually or in the aggregate, reasonably be expected to have a
Material
Adverse Effect. All such Authorizations are valid and in full force
and
effect, and the Company and the Subsidiaries are in compliance in
all
material respects with the terms and conditions of all such
Authorizations
and with the rules and regulations of the authorities having
jurisdiction
with respect to such Authorizations, except for any invalidity,
failure to
be in full force and effect or noncompliance with any Authorization
that
could not, individually or in the aggregate, reasonably be expected
to have
a Material Adverse Effect;
(q) except as set forth in the Registration Statement (excluding
the
exhibits thereto), each Preliminary Prospectus and the Prospectus,
there is
(A) no action, suit or proceeding before or by any Governmental
Authority
or arbitrator, now pending or, to the knowledge of the Company,
threatened
or contemplated, to which the Company or any Subsidiary is or may
be a
party or to which the business, assets or property of the Company
or any
Subsidiary is or may be subject, (B) no law, statute, rule or
regulation
that has been enacted, adopted or issued or, to the knowledge of
the
Company, that has been proposed by any Governmental Authority to
which the
Company or any Subsidiary may be subject, (C) no judgment, decree
or order
of any Governmental Authority that, in any of clause (A), (B) or
(C), could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect;
(r) KPMG LLP, whose reports are included in the Registration
Statement, each Preliminary Prospectus and the Prospectus are
independent
with respect to the Company within the meaning of the Act. The
historical
financial statements (including the notes and schedules thereto)
included
in the Registration Statement, each Preliminary Prospectus, the
Prospectus
and any Permitted Free Writing Prospecuts present fairly in all
material
respects the consolidated financial position, results of
operations, cash
flows and changes in stockholders' equity of the entities to which
they
relate at the respective dates and for the respective periods
indicated.
All such financial statements have been prepared in accordance with
generally accepted accounting principles in the United States
("GAAP")
applied on a consistent basis throughout the periods presented
(except as
disclosed therein) and in compliance with Regulation S-X
("Regulation S-X")
under the Exchange
-10-
Act. All pro forma financial data included in the Registration
Statement,
any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing
Prospectus comply with the requirements of the Act and the Exchange
Act,
and the assumptions used in the preparation of such pro forma
financial
data are reasonable, the pro forma adjustments used therein are
appropriate
to give effect to the transactions or circumstances described
therein and
the pro forma adjustments have been properly applied to the
historical
amounts in the compilation of those data; the other financial and
related
statistical data contained in the Registration Statement, any
Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus
are
accurately and fairly presented and prepared on a basis consistent
with the
financial statements and books and records of the Company; there
are no
financial statements (historical or pro forma) that are required to
be
included in the Registration Statement, any Preliminary Prospectus
or the
Prospectus that are not included as required. The information set
forth in
the Registration Statement, each Preliminary Prospectus and the
Prospectus
under the captions "Summary Financial Data" and "Selected Financial
Data"
has been prepared on a basis consistent with that of the audited
financial
statements of the Company. The ratio of earnings to fixed charges
has been
calculated in compliance with Item 503(d) of Regulation S-K.
Subsequent to
the respective dates as of which information is given in the
Registration
Statement, each Preliminary Prospectus and the Prospectus, except
as set
forth or contemplated in the Registration Statement (excluding the
exhibits
thereto), each Preliminary Prospectus and the Prospectus (A)
neither the
Company or any Subsidiary has (1) incurred any liabilities or
obligations,
direct or contingent, that could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or (2)
entered
into any material transaction not in the ordinary course of
business, (B)
there has not been any event or development in respect of the
business or
condition (financial or other) of the Company or any Subsidiary
that,
either individually or in the aggregate, could reasonably be
expected to
have a Material Adverse Effect, (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any of
its equity interests and (D) there has not been any change in the
capital
stock or long-term debt of the Company or any Subsidiary.
(s) the Company has obtained for the benefit of the Underwriters
the
agreement (a "Lock-Up Agreement"), in the form set forth as Exhibit
A
hereto, of (i) each of its directors and "officers" (within the
meaning of
Rule 16a-1(f) under the Exchange Act and (ii) each Selling
Stockholder and
each holder of shares of Common Stock or any security convertible
into or
exercisable or exchangeable for shares of Common Stock or any
warrant or
other right to acquire shares of Common Stock or any such security;
(t) neither the Company nor any Subsidiary is, and at no time
during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar
rule) in connection with any sale of Shares will either of them be,
and,
after giving effect to the offering and sale of the Shares, neither
of them
will be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the Investment
Company
Act of 1940, as amended (the "Investment Company Act");
-11-
(u) as of the Closing Date, the Company and the Subsidiaries will
have
good, valid and marketable title in fee simple to all items of real
property described in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus
as
being owned by each of them, and valid title to all personal
property
described in the Registration Statement, any Preliminary
Prospectus, the
Prospectus or any Permitted Free Writing Prospectus as being owned
by each
of them, in each case free and clear of any pledge, lien,
encumbrance,
security interest or other title defect or claim of any third
party, except
(A) such as do not materially and adversely affect the value of
such
property and do not materially interfere with the use made or
proposed to
be made of such property by the Company or such Subsidiary and (B)
as
described in the Registration Statement (excluding the exhibits
thereto),
each Preliminary Prospectus and the Prospectus. Any such real
property,
personal property and buildings held under lease by the Company or
any such
Subsidiary are held under valid, subsisting and enforceable leases,
with
such exceptions as do not materially interfere with the use made or
proposed to be made of such property and buildings by the Company
or such
Subsidiary;
(v) except as disclosed in the Registration Statement (excluding
the
exhibits thereto), each Preliminary Prospectus and the Prospectus,
the
Company and each Subsidiary owns, possesses or has the right to
employ all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, the
"Intellectual
Property") necessary to conduct the businesses operated by it as
described
in the Registration Statement, any Preliminary Prospectus, the
Prospectus
or any Permitted Free Writing Prospectus, except where the failure
to own,
possess or have the right to employ such Intellectual Property,
individually or in the aggregate, could not reasonably be expected
to have
a Material Adverse Effect. Neither the Company nor any Subsidiary
has
received any notice of infringement of or conflict with (and
neither knows
of any such infringement or a conflict with) asserted rights of
others with
respect to any of the foregoing that could reasonably be expected
to have a
Material Adverse Effect. The use of the Intellectual Property in
connection
with the business and operations of the Company and the
Subsidiaries does
not infringe on the rights of any person, except for such
infringement as
could not reasonably be expected to have a Material Adverse Effect;
(w) neither the Company nor any Subsidiary has any liability for
any
prohibited transaction or accumulated funding deficiency (within
the
meaning of Section 412 of the Internal Revenue Code) or any
complete or
partial withdrawal liability, if applicable, with respect to any
pension,
profit sharing or other plan which is subject to Title IV of the
Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), to
which the
Company or any Subsidiary makes or has made a contribution in the
past six
years and in which any employee of the Company or any Subsidiary is
or has
ever been a participant, except to the extent such liability could
not,
individually or in the aggregate, reasonably be expected to have a
Material
Adverse Effect. With respect to such plans, the Company and each
Subsidiary
is in compliance in all material respects with all applicable
provisions of
ERISA; except as could not reasonably be expected to have a
Material
Adverse
-12-
Effect, no labor disturbance by the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent
(x) except as disclosed in the Registration Statement (excluding
the
exhibits thereto), each Preliminary Prospectus and the Prospectus
or as
could not reasonably be expected, individually or in the aggregate,
to have
a Material Adverse Effect, (A) the Company and the Subsidiaries are
in
compliance with and not subject to any pending or threatened
liability
under applicable Environmental Laws (as defined below), (B) the
Company and
the Subsidiaries have made all filings and provided all notices
required
under any applicable Environmental Law, and have, and are in
compliance
with, all permits, licenses or other approvals required under any
applicable Environmental Laws for their current operations and each
of them
is in full force and effect, (C) to the knowledge of the Company or
any
Subsidiary, there is no civil, criminal or administrative action,
suit,
demand, claim, hearing, notice of violation, investigation,
proceeding,
notice or demand letter or request for information pending or
threatened
against the Company or any Subsidiary under any Environmental Law,
(D) to
the knowledge of the Company or any Subsidiary, no lien, charge,
encumbrance or restriction has been recorded under any
Environmental Law
with respect to any assets, facility or property owned, operated,
leased or
controlled by the Company or any Subsidiary, (E) neither the
Company nor
any Subsidiary has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or
any comparable state law and (F) no property or facility of the
Company or
any Subsidiary is (y) listed or proposed for listing on the
National
Priorities List under CERCLA or (z) listed on the Comprehensive
Environmental Response, Compensation and Liability Information
System List
promulgated pursuant to CERCLA, or on any comparable list
maintained by any
Governmental Authority. To the knowledge of the Company or any
Subsidiary,
no facts or circumstances exist, no event or condition is
occurring, and no
event or condition has occurred, with respect to the Company or any
Subsidiary relating to any Environmental Law, any release of any
hazardous,
toxic or dangerous substance or waste, any chemical, any solid
waste, any
other pollutant or contaminant, or the Company's or any
Subsidiary's
compliance with current requirements of Environmental Law, that,
individually or in the aggregate, could reasonably be expected to
have a
Material Adverse Effect;
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state, local and foreign
laws,
regulations, rules, ordinances, codes, orders, decrees, judgments,
injunctions or any other legally enforceable requirement issued,
promulgated, approved or entered thereunder, relating to pollution,
or
to protection of public or employee health and safety from
hazardous,
toxic or dangerous substances or wastes or protection of the
environment, including, without limitation, laws relating to: (A)
emissions, discharges, releases or threatened releases of hazardous
materials into the environment (including, without limitation,
ambient
air, surface water, groundwater, land surface or subsurface
strata),
(B) the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport, arrangement for disposal
or
transport or handling of hazardous, toxic or dangerous substances
or
waste, any
-13-
chemical, any solid waste, or any other pollutant or contaminant,
and
(C) underground and aboveground storage tanks and related piping,
and
emissions, discharges, releases or threatened releases therefrom;
(y) in the ordinary course of their business, the Company and each
of
the Subsidiaries conduct periodic reviews of the effect of the
Environmental Laws on their respective businesses, operations and
properties, in the course of which they identify and evaluate
associated
costs and liabilities (including, without limitation, any capital
or
operating expenditures required for cleanup, closure of properties
or
compliance with the Environmental Laws or any permit, license or
approval,
any related constraints on operating activities and any potential
liabilities to third parties);
(z) all tax returns required to be filed by the Company or any
Subsidiary have been filed in all jurisdictions where such returns
are
required to be filed, except for those with respect to which the
Company or
such Subsidiary intends to file for extensions or for which
extensions have
been granted; and all taxes, including withholding taxes, value
added and
franchise taxes, penalties and interest, assessments, fees and
other
charges due or claimed to be due from such entities or that are due
and
payable have been paid, other than those being contested in good
faith and
for which reserves have been provided in accordance with GAAP or
those
currently payable without penalty or interest and except where the
failure
to make such required filings or payments could not, individually
or in the
aggregate, reasonably be expected to have a Material Adverse
Effect;
(aa) the Company and each of the Subsidiaries maintain insurance
covering their respective properties, operations, personnel and
businesses
as the Company reasonably deems adequate; such insurance insures
against
such losses and risks to an extent which is adequate in accordance
with
customary industry practice to protect the Company and the
Subsidiaries and
their respective businesses; all such insurance is fully in force
on the
date hereof and will be fully in force at the time of purchase and
any
additional time of purchase; neither the Company nor any Subsidiary
has
reason to believe that it will not be able to renew any such
insurance as
and when such insurance expires;
(bb) neither the Company nor any of the Subsidiaries has sustained
since the date of the last audited consolidated financial
statements of the
Company included in the Registration Statement, any Preliminary
Prospectuses and the Prospectus any material loss or interference
with its
business from fire, explosion, flood or other calamity, whether or
not
covered by insurance, or any loss or interference with its business
from
any labor dispute or court or governmental action, order or decree;
(cc) neither the Company nor any Subsidiary has sent or received
any
communication regarding termination of, or intent not to renew, any
of the
contracts or agreements specifically referred to or described in
any
Preliminary Prospectus, the Prospectus or any Permitted Free
Writing
Prospectus, or specifically referred to or described in, or filed
as an
exhibit to, the Registration Statement, and no such termination or
non-renewal has been threatened by the Company or any Subsidiary
or, to the
Company's knowledge, any other party to any such contract or
agreement;
-14-
(dd) the Company and each of the Subsidiaries maintain a system of
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 financial statements in conformity with
generally
accepted accounting principles and to maintain accountability for
assets;
(C) where appropriate, access to assets is permitted only in
accordance
with management's general or specific authorization; and (D) the
recorded
accountability for assets is compared with existing assets at
reasonable
intervals and appropriate action is taken with respect to any
differences;
(ee) the Company has established and maintains disclosure controls
and
procedures (as such term is defined in Rules 13a-15 and 15d-15
under the
Exchange Act); such disclosure controls and procedures are
reasonably
designed to ensure that material information relating to the
Company and
the Subsidiaries is made known to the chief executive officer and
chief
financial officer of the Company by others within the Company or
any
Subsidiary, and such disclosure controls and procedures are
reasonably
effective to perform the functions for which they were established
subject
to the limitations of any such control system; and since the date
of the
most recent evaluation of such disclosure controls and procedures,
there
have been no significant changes in internal controls or in other
factors
that could significantly affect internal controls; and the Company
has
taken steps to reasonably ensure that, upon and at all times after
the
filing of the Registration Statement, the Company and the
Subsidiaries and
their respective officers and directors, in their capacities as
such, will
be in compliance in all material respects with the applicable
provisions of
the Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act") and the
rules and regulations promulgated thereunder;
(ff) 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 and the rules
and
regulations promulgated thereunder applicable to it prior to the
date
hereof, including, to the extent applicable, Section 402 related to
loans
and Sections 302 and 906 related to certifications;
(gg) each "forward-looking statement" (within the meaning of
Section
27A of the Act or Section 21E of the Exchange Act) contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus
or any
Permitted Free Writing Prospectus has been made or reaffirmed with
a
reasonable basis and in good faith;
(hh) all statistical or market-related data included in the
Registration Statement, any Preliminary Prospectus, the Prospectus
or any
Permitted Free Writing Prospectus are based on or derived from
sources that
the Company believes to be reliable and accurate in all material
respects
and represents its good faith estimates based on data derived from
such
sources, and the Company has obtained the written consent to the
use of
such data from such sources to the extent required;
(ii) neither the Company nor any of the Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any
Subsidiary
has made any payment of funds of the Company or any Subsidiary or
received
or retained any funds in
-15-
violation of any law, rule or regulation (including, without
limitation,
the Foreign Corrupt Practices Act of 1977), which payment, receipt
or
retention of f
