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EX-1.1
Underwriting Agreement, Dated
February 26, 2008, Between EnerSys, Goldman,
Sachs & Co. and
Certain Selling Stockholders Named Therein
5,000,000
Shares
ENERSYS
Common Stock (Par Value
$0.01 Per Share)
UNDERWRITING
AGREEMENT
February 26, 2008
February 26,
2008
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
United States of America
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 Goldman, Sachs & Co. (the
“ Underwriter ”) an aggregate of 5,000,000
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 4:30 p.m. (New York City time) on
February 26, 2008;
(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 the
information set forth on Schedule III and any 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 each case filed with the Commission pursuant to
Section 13(a) or 15(d) of
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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 statements therein, in the
light of the circumstances under which they were made, not
misleading.
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(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 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
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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 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.
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(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 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
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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 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
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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, 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.
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(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 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
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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
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).
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(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 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.
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(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 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
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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 disclosed
in the Registration Statement, the Pricing Disclosure Package or
the Prospectus. For this purpose, information that is set forth or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package or the Prospectus or that otherwise has
been made publicly available about the Company shall be deemed to
be public information, and any opinion or conclusion that a
Metalmark Selling Stockholder may hold, or analysis performed by a
Metalmark Selling Stockholder, in its capacity as an investor about
the business, results of operations or prospects of the Company and
its subsidiaries shall not be information that relates to the
business, results of operations or prospects of the
Company.
(i) Such Selling Stockholder
has not taken and will not take, directly or indirectly, any action
that is designed to or that has constituted or that could
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any secu
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