Exhibit 10.1
EXECUTION COPY
6,000,000 Shares
ENERSYS
Common Stock (Par Value $0.01 Per
Share)
UNDERWRITING
AGREEMENT
December 7, 2006
December 7, 2006
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Dear Sirs and Mesdames:
The stockholders named in Schedule I
hereto (the “ Selling Stockholders ”) of
EnerSys, a Delaware corporation (the “ Company
”), propose to sell to Lehman Brothers Inc. (the “
Underwriter ”) an aggregate of 6,000,000 shares (the
“ Shares ”) of common stock, par value $0.01 per
share (the “ Common Stock ”) of the
Company.
1.
Representations and Warranties . The Company represents and
warrants to and agrees with the Underwriter that:
(a)
A registration statement on Form S-3 relating to the Shares has (i)
been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the “ Securities
Act ”), and the rules and regulations (the “
Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder; (ii) been filed with the Commission under the
Securities Act; and (iii) become effective under the Securities
Act. Copies of such registration statement and any amendment
thereto have been delivered by the Company to you. As used in this
Agreement:
(i) “
Applicable Time ” means 8:45 a.m. (New York City time)
on the date of this Agreement;
(ii)
“ Effective Date ” means any date as of which
any part of such registration statement relating to the Shares
became, or is deemed to have become, effective under the Securities
Act in accordance with the Rules and Regulations;
(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 Shares;
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(iv) “
Preliminary Prospectus ” means any preliminary
prospectus relating to the Shares included in such registration
statement or filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, including the base prospectus included
in the Registration Statement as supplemented by any preliminary
prospectus supplement thereto relating to the Shares;
(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 under Rule 433 of the
Rules and Regulations;
(vi) “
Prospectus ” means the final prospectus relating to
the Shares, including any prospectus supplement thereto relating to
the Shares, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations; and
(vii) “
Registration Statement ” means, collectively, the
various parts of such registration statement, each as amended as of
the Effective Date for such part, including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C of the Rules and
Regulations to be part thereof as of the Effective Date, any
Preliminary Prospectus or the Prospectus and all exhibits to such
registration statement.
Any reference to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be.
Any reference to the “ most recent Preliminary
Prospectus ” shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration Statement or
filed pursuant to Rule 424(b) prior to or on the date hereof
(including, for purposes hereof, any documents incorporated by
reference therein prior to or on the date hereof). Any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), after
the date of such Preliminary Prospectus or the Prospectus, as the
case may be, and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference
to any amendment to the Registration Statement shall be deemed to
include any annual report of the Company on Form 10-K and any
quarterly report on Form 10-Q, in
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each case filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date that is incorporated by reference in the
Registration Statement. 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 is not an ineligible issuer as defined under the
Securities Act, in each case at the times specified in Rules 164,
405 and 433 of the Rules and Regulations in connection with the
offering of the Shares.
(c)
(i) The Registration Statement as of the Effective Date did not
contain, and any post-effective amendment thereto at the time it
becomes effective will not contain, any 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, (ii) the Registration Statement, as of the Effective
Date, complied and any post-effective amendment thereto at the time
it becomes effective will comply, each Preliminary Prospectus
complied and the Prospectus complies and, as amended or
supplemented, if applicable, will comply in all material respects
when filed with the Commission pursuant to Rule 424(b) and on the
Closing Date with the Securities Act and the Rules and Regulations
and (iii) the Prospectus, as of its date and the Closing Date, will
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to the Underwriter or any Selling Stockholder furnished to
the Company in writing by the Underwriter or such Selling
Stockholder, as the case may be, expressly for use
therein.
(d)
The documents incorporated by reference in any Preliminary
Prospectus or the Prospectus (i) conformed, and any further
documents so incorporated will conform, when filed with the
Commission, in all material respects to the requirements of the
Exchange Act or the Securities Act, as applicable, and the rules
and regulations of the Commission thereunder and (ii) did not, and
any further documents filed and incorporated by reference therein
will not, when filed with the Commission, 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
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statements therein, in the light of
the circumstances under which they were made, not
misleading.
(e)
The Pricing Disclosure Package, together with the price of the Shares and disclosures
directly relating thereto included on the cover page of the
Prospectus, 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 by
the Underwriter specifically for inclusion therein.
(f)
Each Preliminary Prospectus did not, as of its 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 such Preliminary Prospectus in reliance upon and in
conformity with written information furnished to the Company by the
Underwriter or any Selling Stockholder specifically for inclusion
therein.
(g)
Each Issuer Free Writing Prospectus (including, without limitation,
any road show that is a free writing prospectus under Rule 433),
does not conflict with the information contained in the most recent
Preliminary Prospectus or the Prospectus and when considered
together with the Pricing Disclosure Package as of the Applicable
Time, and the price of the
Shares and disclosures directly relating thereto included on the
cover page of the Prospectus, did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading .
(h)
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 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 Shares that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Underwriter. The
Company has retained in accordance with the Rules and
4
Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations.
(i)
The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in each of the Pricing
Disclosure Package and the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(j)
Each significant subsidiary of the Company within the meaning of
Rule 1-02(w) of Regulation S-X under the Securities Act (each a
“ Significant Subsidiary ”, collectively the
“ Significant Subsidiaries ”) has been duly
incorporated or formed, is validly existing as a corporation,
limited liability company or limited partnership, as the case may
be, in good standing under the laws of the jurisdiction of its
incorporation or formation, has the corporate or other power and
authority to own its property and to conduct its business as
described in each of the Pricing Disclosure Package and the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital stock of each Significant
Subsidiary of the Company that is a corporation have been duly and
validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or adverse claims, except in
the case of shares pledged pursuant to that certain Credit
Agreement dated March 17, 2004, among the Company, EnerSys Capital
Inc., various lending institutions party thereto, Bank of America,
N.A., Morgan Stanley Senior Funding, Inc. and Lehman Commercial
Paper Inc., as amended (the “ Credit Agreement
”); all of the issued limited liability company interests of
each Significant Subsidiary of the Company that is a limited
liability company have been duly and validly authorized and issued
and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or adverse claims, except in
the case of limited liability company interests pledged pursuant to
the Credit Agreement; all of the issued limited partnership
interests of each Significant Subsidiary of the Company that is a
limited partnership have
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been duly and validly authorized and
issued and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or adverse claims,
except in the case of limited partnership interests pledged
pursuant to the Credit Agreement.
(k)
This Agreement has been duly authorized, executed and delivered by
the Company.
(l)
The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in each of the Pricing
Disclosure Package and the Prospectus.
(m)
The shares of Common Stock outstanding prior to the sale of the
Shares have been duly authorized and are validly issued, fully paid
and non-assessable.
(n)
The Shares have been duly authorized and issued, and are
fully paid and non-assessable, and after they are delivered against
payment therefor as provided herein, the Shares will not be subject
to any preemptive or similar rights.
(o)
The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not
contravene any provision of (i) applicable law, (ii) the
certificate of incorporation or by-laws of the Company, (iii) any
agreement or other instrument binding upon the Company or any of
its subsidiaries, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary except, in the case of the foregoing
clauses (i), (iii) or (iv), where such contravention would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required to be obtained by the
Company for the performance by the Company of its obligations under
this Agreement, except such as have been obtained under the
Securities Act or as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of
the Shares.
(p)
There has not occurred any material adverse change, or any
development that would reasonably be expected to result in a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth
in each of the Pricing Disclosure Package
6
and the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(q)
There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in
the Registration Statement, the Pricing Disclosure Package or the
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement, the Pricing Disclosure Package or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(r)
The Company is not, and after giving effect to the offering and
sale of the Shares described in the Pricing Disclosure Package and
the Prospectus will not be, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(s)
Except as described in the Pricing Disclosure Package and the
Prospectus, the Company and its Significant Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“ Environmental
Laws ”), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(t)
Except as described in the Pricing Disclosure Package and the
Prospectus, there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in
the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(u)
Except as described in the Pricing Disclosure Package and the
Prospectus, there are no contracts, agreements or
understandings
7
between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(v)
Subsequent to the respective dates as of which information is given
in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, (i) the Company and its subsidiaries have not
incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the
ordinary course of business, that in either case is required to be
disclosed in the Pricing Disclosure Package or the Prospectus; (ii)
the Company has not purchased any of its outstanding capital stock,
nor declared, paid or otherwise made any dividend or distribution
of any kind on its capital stock other than ordinary and customary
dividends; and (iii) there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company and
its subsidiaries, except with respect to each of the foregoing
clauses (i), (ii), and (iii) as described in the Pricing Disclosure
Package and the Prospectus.
(w)
The Company and its Significant Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries taken
as a whole, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Pricing Disclosure
Package or which would not, singly or in the aggregate, reasonably
be expected to result in a material adverse effect on the Company
and its subsidiaries, taken as a whole; and any real property and
buildings held under lease by the Company and its subsidiaries
which are material to the business of the Company and its
subsidiaries taken as a whole are held by them under valid,
subsisting and enforceable leases with such exceptions as would
not, singly or in the aggregate, reasonably be expected to result
in a material adverse effect on the Company and its subsidiaries,
taken as a whole, except in each case as described in the Pricing
Disclosure Package and the Prospectus.
(x)
Except as described in the Pricing Disclosure Package and the
Prospectus, the Company and its subsidiaries own or possess, or can
acquire on reasonable terms, 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 currently employed by them in connection with the
business now operated by them,
8
except where the failure to own or
possess, or the ability to acquire on reasonable terms, any of the
foregoing would not, singly or in the aggregate, reasonably be
expected to result in a material adverse effect on the Company and
its subsidiaries, taken as a whole, and neither the Company nor any
of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which, singly or in the aggregate, would reasonably be
expected to result in a material adverse affect on the Company and
its subsidiaries, taken as a whole.
(y)
No material labor dispute with the employees of the Company or any
of its Significant Subsidiaries exists, except as described in the
Pricing Disclosure Package and the Prospectus, or, to the knowledge
of the Company, is imminent.
(z)
The Company and each of its Significant Subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as in management’s judgment are
prudent; neither the Company nor any of its Significant
Subsidiaries has been refused any insurance coverage sought or
applied for, except such refusals of coverage relating to directors
and officers liability insurance; and neither the Company nor any
of its Significant Subsidiaries has any reason to believe that it
will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse affect on the Company
and its subsidiaries, taken as a whole, except as described in the
Pricing Disclosure Package and the Prospectus and except for such
non-renewals of coverage or inability to obtain similar coverage
from similar insurers relating to directors and officers liability
insurance.
(aa)
The Company and its Significant Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities that are necessary
to conduct their respective businesses in all material respects,
and neither the Company nor any of its Significant Subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit
which, singly or in the aggregate, would reasonably be expected to
have a material adverse affect on the Company and its subsidiaries,
taken as a whole, except as described in the Pricing Disclosure
Package and the Prospectus.
(bb)
The Company and its Significant Subsidiaries maintain a
consolidated system of internal accounting controls sufficient to
provide
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reasonable assurance that (i)
transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(cc)
Except as described in the Pricing Disclosure Package and the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), the Company has not
sold, issued or distributed any shares of Common Stock during the
six-month period preceding the date hereof, including any sales
pursuant to Rule 144A under, or Regulation D or S of, the
Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
(dd)
The Company and its Significant Subsidiaries have filed all
foreign, federal, state and local tax returns that are required to
be filed, or have duly requested extensions thereof, and have paid
all taxes required to be paid by them, any other assessment, fine
or penalty levied against them, except in each case in which the
failure to so file or pay would not have a material adverse affect
on the Company and its subsidiaries, taken as a whole. The
charges, accruals and reserves on the books of the Company in
respect of any income and corporation tax liability for any years
not finally determined are adequate to meet any assessments or
re-assessments for additional income tax for any years not finally
determined, except to the extent of any inadequacy that would not
have a material adverse affect on the Company and its subsidiaries,
taken as a whole.
(ee)
The financial statements incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles (“
GAAP ”) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included
or incorporated by reference in the Registration Statement present
fairly in accordance with GAAP the information required to be
stated therein. The selected financial data
10
incorporated by reference in the
Pricing Disclosure Package and the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements
incorporated by reference in the Registration Statement.
(ff)
The Company has not distributed and, prior to the later to occur of
the Closing Date and completion of the distribution of the Shares,
will not distribute any offering material in connection with the
offering and sale of the Shares other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to
which the Underwriter has consented in accordance with Section 1(g)
and or 7(a)(vii).
(gg)
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 in all material respects with the applicable
provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith.
2
.
Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder, severally and not jointly, represents and
warrants that:
(a)
Neither such Selling Stockholder nor any person acting on behalf of
such Selling Stockholder (other than, if applicable, the Company
and the Underwriter) has used or referred to any “free
writing prospectus” (as defined in Rule 405), relating to the
Shares.
(b)
Such Selling Stockholder has, and immediately prior to the Closing
Date on which such Selling Stockholder is selling the Shares, such
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 ”) in respect of, the
Shares to be sold by such Selling Stockholder hereunder on such
Closing Date free and clear of all liens, encumbrances, equities or
claims.
(c)
Upon payment for the Shares to be sold by such Selling Stockholder,
delivery of such Shares, as directed by the Underwriter, to Cede
& Co. (“ Cede ”) or such other
nominee as may be designated by The Depository Trust Company
(“ DTC
”),
registration of such Shares in the name of Cede or such other
nominee and the crediting of such Shares on the books of DTC to
securities accounts of the Underwriter (assuming that neither DTC
nor the Underwriter has notice of any adverse claim (within the
meaning of Section 8-105 of the UCC) to such Shares), (i) DTC
shall be a “protected purchaser” of such Shares within
the meaning of Section 8-303 of the UCC, (ii) under Section
8-501 of the UCC, the Underwriter will
11
acquire a valid
security entitlement in respect of such Shares and (iii) no
action based on any “adverse claim,” within the meaning
of Section 8-102 of the UCC, to such Shares may be asserted against
the Underwriter with respect to such security entitlement.
For purposes of this representation, such Selling Stockholder may
assume that when such payment, delivery and crediting occur,
(A) such Shares will have been registered in the name of Cede
or another nominee designated by DTC, in each case on the
Company’s share registry in accordance with its certificate
of incorporation, bylaws and applicable law, (B) DTC will be
registered as a “clearing corporation” within the
meaning of Section 8-102 of the UCC and (C) appropriate
entries to the accounts of the Underwriter on the records of DTC
will have been made pursuant to the UCC.
(d)
Such Selling Stockholder has full right, power and authority,
corporate or otherwise, to enter into this Agreement.
(e)
This Agreement has been duly and validly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(f)
The execution, delivery and performance of this Agreement by such
Selling Stockholder and the consummation by such Selling
Stockholder of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement, license or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling
Stockholder is subject, (ii) result in any violation of the
provisions of the charter or by-laws or deed of trust (or similar
organizational documents) of such Selling Stockholder, or (iii)
result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property or
assets of such Selling Stockholder.
(g)
No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property or
assets of such Selling Stockholder is required for the execution,
delivery and performance of this Agreement by such Selling
Stockholder and the consummation by such Selling Stockholder of the
transactions contemplated hereby and thereby, except for the
registration of the Shares under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities
12
laws in
connection with the purchase and sale of the Shares by the
Underwriter.
(h)
All material information with respect to such Selling Stockholder
contained in each of the Registration Statement, the Prospectus and
the Pricing Disclosure Package (as amended and supplemented, if the
Company shall have filed with the Commission any amendment or
supplement thereto) (i) complied and will comply in all material
respects with all applicable provisions of the Securities Act and
the Rules and Regulations, (ii) contains and will contain all
statements of material fact required to be stated therein in
accordance with the Securities Act and the Rules and Regulations,
and (iii) does not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading. Solely with respect to the Metalmark Selling
Stockholders (as defined in Schedule I hereto), such Selling
Stockholder is not prompted to sell the Shares by any material
non-public information relating to the business, results of
operations or prospects of the Company and its subsidiaries of an
adverse nature that is required to be