Exhibit 1.1
Itron,
Inc.
3,400,000
Shares
Common
Stock
(no
par value)
Underwriting Agreement
Underwriting Agreement
May
6, 2008
Goldman,
Sachs & Co.
85
Broad Street
New
York, New York 10004
Ladies
and Gentlemen:
Itron, Inc., a Washington
corporation (the “ Company
”), proposes to issue and sell to you (the “
Underwriter
”) an aggregate of 3,400,000 shares (the “
Shares
”) of common stock, no par value (the “
Common
Stock ”), of the Company. The Shares
are described in the Prospectus which is referred to
below. The Shares will have attached thereto share
purchase rights (the “ Rights
”) issued pursuant to the Rights Agreement (the “
Rights
Agreement ”) dated as of December 11, 2002
between the Company and Mellon Investor Services LLC, as
rights agent.
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-3 (File No.
333-133026) under the Act (the “ registration
statement ”), including a prospectus, which
registration statement incorporates by reference documents
which the Company has filed, or will file, in accordance with
the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder
(collectively, the “ Exchange
Act ”). Such registration statement
has become effective under the Act.
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
Underwriter (the “ Effective
Time ”), including (i) all documents filed as a
part thereof or incorporated or deemed to be incorporated by
reference therein and (ii) any information contained or
incorporated by reference in a prospectus filed with the
Commission pursuant to Rule 424(b) under the Act, to the
extent such information is deemed, pursuant to Rule 430B or
Rule 430C under the Act, to be part of the registration
statement at the Effective Time.
Except where the context
otherwise requires, “ Basic
Prospectus ,” as used herein, means the base
prospectus included as part of the Registration Statement, in
the form in which it has most recently been filed with the
Commission prior to the date of this
Agreement. Except where the context otherwise
requires, “ Prospectus
Supplement ,” as used herein, means the final
prospectus supplement, relating to the Shares, 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), in the form furnished by the Company to you for use by
you and by dealers in connection with the offering of the
Shares. Except where the context otherwise
requires, “ Prospectus
,” as used herein, means the Basic Prospectus as
supplemented by the Prospectus Supplement.
“ Permitted Free
Writing Prospectuses ,” as used herein, means
the documents listed on Schedule
A attached hereto. The Underwriter has not
offered or sold and will not offer or sell, without the
Company’s consent, any Shares by means of any
“free writing prospectus” (as defined in Rule 405
under the Act) that is required to be filed by the
Underwriter with the Commission pursuant to Rule 433 under
the Act, other than a Permitted Free Writing
Prospectus.
“ Disclosure
Package ,” as used herein, means the Basic
Prospectus, together with the Permitted Free Writing
Prospectuses, if any, and the information set forth on
Schedule
B attached hereto, taken as a whole.
Any reference herein to the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the
documents, if any, incorporated by reference, or deemed to be
incorporated by reference, therein (the “ Incorporated
Documents ”), including, unless the context
otherwise requires, the documents, if any, filed as exhibits
to such Incorporated Documents. Any reference
herein to the terms “ amend
,” “ amendment
” or “ supplement
” with respect to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act
on or after the initial effective date of the Registration
Statement, or the date of the Basic Prospectus, the
Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
As used in this Agreement,
“ business
day ” shall mean a day on which the NASDAQ Stock
Market (“ NASDAQ
”) 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 and the
Underwriter 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
to the Underwriter and the Underwriter agrees to purchase from the
Company, 3,400,000 Shares at a purchase price of $91.52 per
Share. The Company is advised by you that you intend (i)
to make a public offering of the Shares as soon after the
effectiveness of this Agreement as in your judgment is advisable
and (ii) initially to offer the 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.
2.
Payment and Delivery . Payment of the purchase
price for the Shares shall be made to the Company by Federal Funds
wire transfer against delivery of the certificates for the Shares
to you through the facilities of The Depository Trust Company
(“ DTC ”)
for the account of the Underwriter. Such payment and
delivery shall be made at 10:00 A.M., New York City time, on May
12, 2008 (the “ Closing Date
”) (unless another time shall be agreed to by you and the
Company). The time at which such payment and delivery
are to be made is hereinafter sometimes called the “
time of
purchase .” Electronic transfer of the
Shares shall be made to you at the time of purchase in such names
and in such denominations as you shall specify.
Deliveries of the documents described in Section 6
hereof with respect to the purchase of the Shares shall be
made at the offices of Skadden, Arps, Slate, Meagher &
Flom LLP at 300 South Grand Avenue, Suite 3400, Los Angeles,
California 90071, at 9:00 A.M., New York City time, on the
date of the closing of the purchase of the
Shares.
3.
Representations and Warranties of the Company
. The Company represents and warrants to and agrees with
the Underwriter that:
(a)
the
Registration Statement has heretofore become effective under the
Act; no stop order of the Commission preventing or suspending the
use of the Basic Prospectus, the Prospectus Supplement, the
Prospectus or any 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;
(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 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 conditions to the
use of Form S-3 in connection with the offering and sale of the
Shares as contemplated hereby have been satisfied; the Registration
Statement constitutes an “automatic shelf registration
statement” (as defined in Rule 405 under the Act); the
Company has not received from the Commission a notice, pursuant to
Rule 401(g)(2), of objection to the use of the automatic shelf
registration statement form; as of the determination date
applicable to the Registration Statement (and any amendment
thereof) and the offering contemplated hereby, the Company is a
“well-known seasoned issuer” as defined in Rule 405
under the Act; the Registration Statement meets, and the offering
and sale of the Shares as contemplated hereby complies with, the
requirements of Rule 415 under the Act (including, without
limitation, Rule 415(a)(5) under the Act); the Registration
Statement did not, as of 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; the Basic Prospectus complied as of its
date and the date it was filed with the Commission, complies as of
the date hereof and, at the time of purchase 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 Disclosure Package does not 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; each of the Prospectus
Supplement and the Prospectus will comply, as of the date that it
is filed with the Commission, the date of the Prospectus
Supplement, the time of purchase 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 (in the case of
the Prospectus, 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 Supplement and the date the Prospectus
Supplement is filed with the Commission and ends at the later of
the time of purchase 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 any
Prospectus Supplement or 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; each Permitted Free Writing
Prospectus does not conflict with the information contained in the
Registration Statement, the Disclosure Package or the Prospectus,
and 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 in this Section
3(b) with respect to any statement contained in the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus
in reliance upon and in conformity with information concerning the
Underwriter and furnished in writing by or on behalf of the
Underwriter to the Company expressly for use in the Registration
Statement, the Prospectus or such Permitted Free Writing
Prospectus; each Incorporated Document, at the time such document
was filed with the Commission or at the time such document became
effective, as applicable, complied, in all material respects, with
the requirements of the Exchange Act and did not 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;
(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 Basic Prospectus 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 compliance with Rule 163 or with Rules 164 and 433 under
the Act; assuming 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 the Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of
Rule 164 and Rule 433 (without reliance on subsections (b), (c) and
(d) of Rule 164); the conditions set forth in one or more of
subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the
Act are satisfied, and the registration statement relating to the
offering of the Shares contemplated hereby, as initially filed with
the Commission, includes 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; neither the Company nor the Underwriter 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;
(d)
as
of the date of this Agreement, the Company has an authorized and
outstanding capitalization as set forth under the heading
“Actual” in the section of the Prospectus entitled
“Capitalization” (and any similar sections or
information, if any, contained in any Permitted Free Writing
Prospectus), and, as of the time of purchase, the Company shall
have an authorized and outstanding capitalization as set forth in
the section of the Prospectus entitled “Capitalization”
(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) and the Prospectus and the grant
of options under existing stock option plans described in the
Registration Statement (excluding the exhibits thereto) and the
Prospectus); all of the issued and outstanding shares of capital
stock, including the Shares, of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right; the
Shares are duly listed, and admitted and authorized for trading,
subject to official notice of issuance, on NASDAQ;
(e)
the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Washington, with full corporate power and authority to own, lease
and operate its properties and conduct its business as described in
the Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any, to execute and deliver this Agreement
and to issue, sell and deliver the Shares as contemplated
herein;
(f)
the
Company is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified and
in good standing would not, individually or in the aggregate, (i)
have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the
Company and the Subsidiaries (as defined below) taken as a whole,
(ii) prevent or materially interfere with consummation of the
transactions contemplated hereby or (iii) result in the delisting
of shares of Common Stock from NASDAQ (the occurrence of any such
effect or any such prevention or interference or any such result
described in the foregoing clauses (i), (ii) and (iii) being herein
referred to as a “ Material Adverse
Effect ”);
(g)
the
Company has no subsidiaries (as defined under the Act) other than
those listed on Exhibit 21.1 to the Company’s Annual Report
on Form 10-K for the year ended December 31, 2007 (collectively,
the “ Subsidiaries
”); except as disclosed in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
with respect to the PT Mecoindo, the Company owns, directly or
indirectly, all of the issued and outstanding capital stock of each
of the Subsidiaries; 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; complete and correct copies of the
charters and the bylaws of the Company and Actaris Metering Systems
SA (“ Actaris
”) and all amendments thereto have been delivered to you, and
no changes therein will be made on or after the date hereof through
and including the time of purchase; each Subsidiary has been
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any; each Subsidiary is qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse
Effect; except as disclosed in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
with respect to the PT Mecoindo, all of the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable, have been
issued in compliance with all applicable securities laws, were not
issued in violation of any preemptive right, resale right, right of
first refusal or similar right and are owned by the Company subject
to no security interest, other encumbrance or adverse claims;
except as disclosed in the Registration Statement, the Prospectus
and the Permitted Free Writing Prospectuses, if any, with respect
to the PT Mecoindo, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights
to convert any obligation into shares of capital stock or ownership
interests in the Subsidiaries are outstanding; the Company has no
“significant subsidiary,” as that term is defined in
Rule 1-02(w) of Regulation S-X under the Act, other than
Actaris;
(h)
the
Shares 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, 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 Washington Corporation Law or the Company’s charter or
bylaws or any agreement or other instrument to which the Company is
a party;
(i)
the
capital stock of the Company, including the Shares, conforms in all
material respects to each description thereof, if any, contained or
incorporated by reference in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any; and
the certificates for the Shares are in due and proper
form;
(j)
this
Agreement has been duly authorized, executed and delivered by the
Company;
(k)
the
Rights Agreement has been duly authorized, executed and delivered
by the Company; the Rights have been duly authorized by the Company
and validly issued;
(l)
neither
the Company nor any of the Subsidiaries is in breach or violation
of or in default under (nor has any event occurred which, with
notice, lapse of time or both, would result in any breach or
violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) (A) its charter or bylaws, or
(B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound or affected, or
(C) any federal, state, local or foreign law, regulation or rule,
or (D) any rule or regulation of any self-regulatory organization
or other non-governmental regulatory authority (including, without
limitation, the rules and regulations of NASDAQ), or (E) any
decree, judgment or order applicable to it or any of its
properties; except, in the cases of clause (B), (C) and (D), where
such occurrence would not, individually or in the aggregate, have a
Material Adverse Effect;
(m)
the
execution, delivery and performance of this Agreement, the issuance
and sale of the Shares and the consummation of the transactions
contemplated hereby will not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any
event which, with notice, lapse of time or both, would result in
any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
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 pursuant to) (A) the charter or bylaws of the Company or
any of the Subsidiaries, or (B) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties
may be bound or affected, or (C) any federal, state, local or
foreign law, regulation or rule, or (D) any rule or regulation of
any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the rules and
regulations of NASDAQ, or (E) any decree, judgment or order
applicable to the Company or any of the Subsidiaries or any of
their respective properties; except, in the cases of clause (B),
(C) and (D), where such occurrence would not, individually or in
the aggregate, have a Material Adverse Effect;
(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, NASDAQ, or approval of
the shareholders of the Company, is required in connection with the
issuance and sale of the Shares and the related Rights or the
consummation by the Company of the transactions contemplated
hereby, other than (i) registration of the Shares and the Rights
under the Act, which has been effected, (ii) any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriter or (iii) under the Conduct Rules of the Financial
Industry Regulatory Authority, Inc. (“ FINRA
”);
(o)
except
as described in the Registration Statement (excluding the exhibits
thereto) 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 and
(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; 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
other equity interests or securities in the Company, or to include
any such shares or interests or securities in the Registration
Statement or the offering contemplated thereby;
(p)
each
of the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary
filings required under any applicable law, regulation or rule, and
has obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to conduct their respective
businesses, except where the failure to have or obtain such
licenses, authorizations, consents and approvals would not,
individually or in the aggregate, have a Material Adverse Effect;
neither the Company nor any of the Subsidiaries is in violation of,
or in default under, or has received notice of any proceedings
relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries, except where
such violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse
Effect;
(q)
there
are no actions, suits, claims, investigations or proceedings
pending or, to the Company’s knowledge, threatened or
contemplated to which the Company or any of the Subsidiaries or any
of their respective directors or officers is or would be a party or
of which any of their respective properties is or would be subject
at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body,
authority or agency, or before or by any self-regulatory
organization or other non-governmental regulatory authority
(including, without limitation, NASDAQ), except any such action,
suit, claim, investigation or proceeding which, if resolved
adversely to the Company or any Subsidiary, would not, individually
or in the aggregate, have a Material Adverse Effect;
(r)
Deloitte
& Touche LLP and Ernst & Young LLP, each of whose report on
the consolidated financial statements of the Company and the
Subsidiaries is included or incorporated by reference in the
Registration Statement and the Prospectus, are each an independent
public accounting firm as required by the Act and by the rules of
the Public Company Accounting Oversight Board and to the best of
our knowledge are each registered as such;
(s)
the
financial statements included or incorporated by reference in the
Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any, together with the related notes and
schedules, present fairly the consolidated financial position of
the Company and the Subsidiaries as of the dates indicated and of
Actaris as of the dates indicated and the consolidated results of
operations, cash flows and changes in shareholders’ equity of
the Company for the periods specified and of Actaris for the
periods specified and have been prepared in compliance with the
requirements of the Act and Exchange Act and in conformity with
U.S. generally accepted accounting principles applied on a
consistent basis during the periods involved; all pro forma
financial statements or data included or incorporated by reference
in the Registration Statement, the Prospectus and the Permitted
Free Writing Prospectuses comply with the requirements of the Act
and the Exchange Act, and the assumptions used in the preparation
of such pro forma financial statements and 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 statements and data; the other
financial and statistical data contained or incorporated by
reference in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, 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 or incorporated by reference in the
Registration Statement or the Prospectus that are not included or
incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits
thereto) and the Prospectus; and all disclosures contained or
incorporated by reference in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply
with Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the Act, to the extent applicable;
(t)
subsequent
to the respective dates as of which information is given in the
Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any, in each case excluding any amendments
or supplements to the foregoing made after the execution of this
Agreement, there has not been (i) any material adverse change, or
any development involving a prospective material adverse change, in
the business, properties, management, financial condition or
results of operations of the Company and the Subsidiaries taken as
a whole, (ii) any transaction which is material to the Company and
the Subsidiaries taken as a whole, (iii) any obligation or
liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or any Subsidiary, which is
material to the Company and the Subsidiaries taken as a whole, (iv)
any change in the capital stock of the Company, except for the
issuance of stock pursuant to the exercise of stock options
outstanding, or pursuant to the stock option plans of the Company
in effect, in each case, as of the dates as of which information is
given in the Registration Statement and the Prospectus and
disclosed therein in the section entitled
“Capitalization”, or outstanding indebtedness of the
Company or any Subsidiaries or (v) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company
or any Subsidiary;
(u)
the
Company has obtained for the benefit of the Underwriter the
agreement (a “ Lock-Up
Agreement ”), in the form set forth as Exhibit A
hereto, of each of its directors and “officers” (within
the meaning of Rule 16a-1(f) under the Exchange Act);
(v)
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 and the application of the proceeds thereof, 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 ”);
(w)
neither
the Company nor any Subsidiary is and, after giving effect to the
offering and sale of the Shares, neither will be a “holding
company” or a “subsidiary company” of a
“holding company” or an “affiliate” of a
“holding company” or of a “subsidiary
company,” as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended (the “ Public Utility
Holding Company Act ”);
(x)
the
Company and each of the Subsidiaries have good and marketable title
to all property (real and personal) described in the Registration
Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned by any of them, free and clear
of all liens, claims, security interests or other encumbrances,
except such as are described in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or
such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made
of such property by the Company and its Subsidiaries; all the
property described in the Registration Statement, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as being held
under lease by the Company or a Subsidiary is held thereby under
valid, subsisting and enforceable leases;
(y)
the
Company and the Subsidiaries own, or have obtained valid and
enforceable licenses for, or other rights to use, the inventions,
patent applications, patents, trademarks (both registered and
unregistered), tradenames, service names, copyrights, trade secrets
and other proprietary information described in the Registration
Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned or licensed by them or which
are necessary for the conduct of their respective businesses as
currently conducted or as proposed to be conducted, except where
the failure to own, license or have such rights would not,
individually or in the aggregate, have a Material Adverse Effect
(collectively, “ Intellectual
Property ”); except as disclosed in the Registration
Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, with respect to IP Co. LLP, (i) there are no
third parties who have or, to the Company’s knowledge, will
be able to establish rights to any Intellectual Property, except
for, and to the extent of, the ownership rights of the owners of
the Intellectual Property which is licensed to the Company; (ii) to
the knowledge of the Company, there is no infringement by third
parties of any Intellectual Property; (iii) there is no pending or,
to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the Company’s
rights in or to any Intellectual Property, except as would not,
individually or in the aggregate, have a Material Adverse Effect,
and the Company is unaware of any facts which could form a
reasonable basis for any such action, suit, proceeding or claim;
(iv) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging
the validity, enforceability or scope of any Intellectual Property,
and the Company is unaware of any facts which could form a
reasonable basis for any such action, suit, proceeding or claim;
(v) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that the
Company or any Subsidiary infringes or otherwise violates, any
patent, trademark, tradename, service name, copyright, trade secret
or other proprietary rights of others, and the Company is unaware
of any facts which could form a reasonable basis for any such
action, suit, proceeding or claim; (vi) the Company and the
Subsidiaries have complied in all material respects with the terms
of each agreement pursuant to which Intellectual Property has been
licensed to the Company or any Subsidiary, and all such agreements
are in full force and effect; (vii) to the knowledge of the
Company, there is no patent or patent application that contains
claims that interfere with the issued or pending claims of any of
the Intellectual Property or that challenges the validity,
enforceability or scope of any of the Intellectual Property; and
(viii) to the knowledge of the Company, there is no prior art that
may render any patent application within the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office;
(z)
neither
the Company nor any of the Subsidiaries is engaged in any unfair
labor practice; except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect, (i) there is (A)
no unfair labor practice complaint pending or, to the
Company’s knowledge, threatened against the Company or any of
the Subsidiaries before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or, to the
Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of the
Subsidiaries and (C) no union representation dispute currently
existing concerning the employees of the Company or any of the
Subsidiaries, (ii) to the Company’s knowledge, no union
organizing activities are currently taking place concerning the
employees of the Company or any of the Subsidiaries and (iii) there
has been no violation of any federal, state, local or foreign law
relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws, any provision of the
Worker Adjustment and Retraining Notification Act of 1988, as
amended (“ WARN Act
”) or the WARN Act’s state, foreign or local
equivalent, or any provision of the Employee Retirement Income
Security Act of 1974 (“ ERISA ”)
or the rules and regulations promulgated thereunder concerning the
employees of the Company or any of the Subsidiaries;
(aa)
the
Company and the Subsidiaries and their respective properties,
assets and operations are in compliance with, and the Company and
each of the Subsidiaries hold all permits, authorizations and
approvals required under, Environmental Laws (as defined below),
except to the extent that failure to so comply or to hold such
permits, authorizations or approvals would not, individually or in
the aggregate, have a Material Adverse Effect or would otherwise
require disclosure in the Registration Statement and the
Prospectus; there are no past, present or, to the Company’s
knowledge, reasonably anticipated future events, conditions,
circumstances, activities, practices, actions, omissions or plans
that could reasonably be expected to give rise to any material
costs or liabilities to the Company or any Subsidiary under, or to
interfere with or prevent compliance by the Company or any
Subsidiary with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect or
would otherwise require disclosure in the Registration Statement
and the Prospectus, neither the Company nor any of the Subsidiaries
(i) is the subject of any investigation, (ii) has received any
notice or claim, (iii) is a party to or affected by any pending or,
to the Company’s knowledge, threatened action, suit or
proceeding, (iv) is bound by any
