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Exhibit
10.1
EXECUTION
COPY
3,400,000
Shares
ENERSYS
Common Stock (Par Value
$0.01 Per Share)
UNDERWRITING
AGREEMENT
May 21, 2008
May 21, 2008
Goldman, Sachs &
Co.,
Banc of America Securities
LLC
As
representatives of the several Underwriters
named in
Schedule I hereto,
c/o Goldman, Sachs &
Co.
85 Broad Street
New York, New York 10004
and
c/o Banc of America Securities
LLC
One Bryant Park
New York, New York 10036
Dear Sirs and Mesdames:
The stockholders named in
Schedule II hereto (the “ Selling Stockholders
”) of EnerSys, a Delaware corporation (the “
Company ”), propose to sell to the underwriters named
in Schedule I hereto (the “ Underwriters ”), for
which you are acting as representatives (the “
Representatives ”), an aggregate of 3,400,000 shares
(the “ Firm Shares ”) of common stock, par value
$0.01 per share (the “ Common Stock ”) of the
Company, and at the election of the Underwriters, up to an
aggregate of 340,000 additional shares of Common Stock (the “
Optional Shares ”) (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to
Section 3(b) hereof are herein collectively called the “
Shares ”).
1. Representations and
Warranties . The Company represents and warrants to and agrees
with the Underwriters that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under 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 ”) has
been filed on Form S-3 (File No. 333-151000) in respect of the
Shares not earlier than three years prior to the date hereof; such
registration statement, and any post-effective amendment thereto,
became effective upon filing (the “ Effective Date
”); and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use
of such registration statement or any post-effective
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amendment thereto pursuant to
Rule 401(g)(2) under the Securities Act has been received by the
Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement, is
hereinafter called the “ Basic Prospectus ”; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Shares filed with the Commission
pursuant to Rule 424(b) under the Securities Act is hereinafter
called a “ Preliminary Prospectus ”; the various
parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus
supplement relating to the Shares that is filed with the Commission
and deemed by virtue of Rule 430B to be part of such registration
statement, each as amended at the time such part of the
registration statement became effective, are hereinafter
collectively called the “ Registration Statement
”; the Preliminary Prospectus, as amended and supplemented
immediately prior to the Applicable Time (as defined below)
together with the information set forth on Schedule IV 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, is hereinafter called the “ Pricing
Disclosure Package ”; the form of the final prospectus
relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Securities Act in accordance with
Section 5(a) hereof is hereinafter called the “
Prospectus ”; any reference herein to the Basic
Prospectus, the Pricing Disclosure Package, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date
of such prospectus; any reference to any amendment or supplement to
the Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Securities Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), and incorporated therein, in each
case after the date of the Basic Prospectus, such Preliminary
Prospectus, or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
“issuer free writing prospectus” as defined in Rule 433
under the Securities Act relating to the Shares is hereinafter
called an “ Issuer Free Writing Prospectus ”);
“ Applicable Time ” means 8:15 p.m. (New York
City time) on May 21, 2008.
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(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
Underwriters or any Selling Stockholder furnished to the Company in
writing by the Underwriters 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.
(e) The Pricing Disclosure
Package did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company by the Underwriters
specifically for inclusion therein.
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(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 Underwriters 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 Underwriters. 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 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.
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(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.
(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.
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(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 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.
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(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 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.
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(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 effect 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
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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 effect 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 effect 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 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.
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(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 effect 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
effect 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
Underwriters have 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.
(hh) Neither the Company nor
any of its Significant Subsidiaries nor, to the best knowledge of
the Company, any director, officer, agent,
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employee or other person
associated with or acting on behalf of the Company or any of its
subsidiaries has (A) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; (B) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (C) violated or is
in violation of any provision of the Foreign Corrupt Practices Act
of 1977; or (D) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ii) The operations of the
Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “ Money Laundering Laws ”) and no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened,
except as would not, individually or in the aggregate, reasonably
be expected to result in an material adverse effect on the Company
and its subsidiaries taken as a whole.
(jj) To the best of the
Company’s knowledge, none of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“ OFAC ”); and the
Company will not directly or indirectly use the proceeds of the
offering of the Shares hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(kk) (A) (i) At the time
of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 under the Act,
the Company was a “well-known seasoned issuer” as
defined in Rule 405
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under the Act; and
(B) at the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) under the
Act) of the Securities, the Company was not an “ineligible
issuer” as defined in Rule 405 under the Act.
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
Underwriters) 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 Underwriters, 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 Underwriters (assuming that neither
DTC nor the Underwriters have 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 Underwriters
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 Underwriters 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
Underwriters 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
Underwriters.
(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
13
defined in Schedule II
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 security of the Company to
facilitate the sale or resale of the Shares.
(j) The sale of the Shares by
such Selling Stockholder does not violate any of the
Company’s internal policies regarding the sale of stock by
its affiliates.
Any certificate signed by any
officer of any Selling Stockholder and delivered to the
Underwriters or counsel for the Underwriters in connection with the
offering of the Shares shall be deemed a representation and
warranty by such Selling Stockholder, as to matters covered
thereby, to the Underwriters.
3. Agreements to Sell and
Purchase.
(a) The Selling Stockholders
hereby agree, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated,
to purchase from each of the Selling Stockholders at a purchase
price of $27.70 a share (the “ Purchase Price ”)
the number of Firm Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number
of Firm Shares to be sold by each Selling Stockholder as set forth
in Schedule II hereof opposite its respective name by a fraction,
the numerator of which is the aggregate number of Firm Shares to be
purchased by such Underwriter as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which
is the aggregate number of Firm Shares to be purchased by all of
the Underwriters from all of the Selling Stockholders
hereunder.
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(b) In the event and to the
extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, each of the Selling
Stockholders agrees, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from each of the Selling Stockholders,
at the purchase price per share set forth in clause (a) of
this Section 3, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted
by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
(c) The Selling Stockholders,
as and to the extent indicated in Schedule II hereto, hereby grant,
severally and not jointly, to the Underwriters the right to
purchase at their election up to 340,000 Optional Shares, at the
purchase price per share set forth in Section 3(a) above, for
the sole purpose of covering sales of shares in excess of the
number of Firm Shares. Any such election to purchase Optional
Shares shall be made in proportion to the number of Optional Shares
to be sold by each Selling Stockholder. Any such election to
purchase Optional Shares may be exercised only by written notice
from you to the Selling Stockholders, given within a period of 30
calendar days after the date of this Agreement and setting forth
the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Closing
Date (as defined in Section 5 hereof) or, unless you and the
Selling Stockholders otherwise agree in writing, earlier than two
or later than ten business days after the date of such
notice.
(d) The Company and each
Selling Shareholder hereby agrees that, without the prior written
consent of Goldman, Sachs & Co., it will not, during the
period ending 75 days after the date of the Prospectus,
(i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock; (ii) file any registration
statement with the Commission relating to the offering of any
shares of Common Stock or any securities convertible into or
exercisable
15
or exchangeable for Common
Stock; or (iii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such
transaction described in clause (i), (ii) or (iii) above
is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to the issuance by the Company of shares of Common Stock, any
option to purchase shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock to
directors, officers and employees of the Company and its
subsidiaries pursuant to bonus, option, incentive, employee stock
purchase or other compensatory plans of the Company existing on the
date hereof that are described in the Pricing Disclosure Package or
filed as an exhibit to the Registration Statement.
4. Terms of Public
Offering . The Company and the Selling Stockholders are advised
by you that the Underwriters propose to make a public offering of
the Firm Shares as
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