Exhibit 1.1
2,000,000 Shares
MAXWELL TECHNOLOGIES,
INC.
Common Stock
UNDERWRITING
AGREEMENT
May 18, 2009
Roth Capital Partners,
LLC
24 Corporate Plaza
Newport Beach, CA 92660
Ladies and Gentlemen:
Maxwell Technologies, Inc., a
Delaware corporation (the “ Company ”) proposes,
subject to the terms and conditions stated herein, to issue and
sell to Roth Capital Partners, LLC (the “ Underwriter
”) an aggregate of 2,000,000 authorized but unissued shares
(the “ Underwritten Shares ”) of Common Stock,
$0.10 par value per share (the “ Common Stock
”), of the Company and to grant the Underwriter the option to
purchase an aggregate of up to 300,000 additional shares (the
“ Additional Shares ”) as may be necessary to
cover over-allotments made in connection with the offering of the
Underwritten Shares. The Underwritten Shares and Additional Shares
are collectively referred to as the “ Shares
.”
The Company and the Underwriter
hereby confirm their agreement as follows:
1. Registration Statement and
Prospectus. The
Company has prepared and filed with the Securities and Exchange
Commission (the “ Commission ”) a registration
statement on Form S-3 (File No. 333-138943) under the
Securities Act of 1933, as amended (the “ Securities
Act ”) and the rules and regulations (the “
Rules and Regulations ”) of the Commission thereunder,
and such amendments to such registration statement (including post
effective amendments) as may have been required to the date of this
Agreement. Such registration statement, as amended (including any
post effective amendments) has been declared effective by the
Commission. Such registration statement, at any given time,
including amendments thereto (including post effective amendments
thereto) at such time, the exhibits and any schedules thereto at
such time, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act at such time
and the documents and information otherwise deemed to be a part
thereof or included therein by Rule 430B under the Securities Act
or otherwise pursuant to the Rules and Regulations at such time, is
herein called the “ Registration Statement .” If
the Company has filed or files an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the
“ Rule 462 Registration Statement ”), then any
reference herein to the term Registration Statement shall include
such Rule 462 Registration Statement.
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The Company is filing with the
Commission pursuant to Rule 424 under the Securities Act a final
prospectus supplement relating to the Shares to a form of
prospectus included in the Registration Statement in the form
heretofore delivered to the Underwriter. Such prospectus in the
form in which it appears in the Registration Statement is
hereinafter called the “ Base Prospectus .” Such
supplemental form of prospectus, and any preliminary prospectus
supplement or “red herring,” in the form in which they
shall be filed with the Commission pursuant to Rule 424(b)
(including the Base Prospectus as so supplemented) is hereinafter
called the “ Prospectus .” Any reference herein
to the Base Prospectus or the Prospectus shall be deemed to 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.
For purposes of this Agreement, all
references to the Registration Statement, the Rule 462 Registration
Statement, the Base Prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“ EDGAR
”). All references in this Agreement to financial statements
and schedules and other information which is
“described,” “contained,”
“included” or “stated” in the Registration
Statement, the Rule 462 Registration Statement, the Base
Prospectus, or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in or otherwise deemed by the Rules and Regulations to be
a part of or included in the Registration Statement, the Rule 462
Registration Statement, the Base Prospectus or the Prospectus, as
the case may be; and all references in this Agreement to amendments
or supplements to the Registration Statement, the Rule 462
Registration Statement, the Base Prospectus or the Prospectus shall
be deemed to mean and include the subsequent filing of any document
under the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”) which is deemed to be incorporated
therein by reference therein or otherwise deemed by the Rules and
Regulations to be a part thereof.
2. Representations and
Warranties of the Company.
(a) The Company represents and
warrants to, and agrees with, the Underwriter as
follows:
(i) No order preventing or
suspending the use of any Prospectus has been issued by the
Commission and each Prospectus, at the time of filing or the time
of first use within the meaning of the Rules and Regulations,
complied in all material respects with the requirements of the
Securities Act and the Rules and Regulations and 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; except that the foregoing shall not
apply to statements in or omissions from any Prospectus in reliance
upon, and in conformity with, written information furnished to the
Company by the Underwriter specifically for use in the preparation
thereof.
(ii) The Company has complied to the
Commission’s satisfaction with all requests of the Commission
for additional or supplemental information. No stop order
suspending the effectiveness of the Registration Statement is in
effect and no proceedings for such purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated
or threatened by the Commission.
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(iii) Each part of the Registration
Statement, the Rule 462 Registration Statement and any
post-effective amendment thereto, at the time such part became
effective (including each deemed effective date with respect to the
Underwriter pursuant to Rule 430B under the Securities Act), at all
other subsequent times until the expiration of the Prospectus
Delivery Period (as defined below), and at the Closing Date (as
hereinafter defined), and the Prospectus (or any amendment or
supplement to the Prospectus), at the time of filing or the time of
first use within the meaning of the Rules and Regulations, at all
subsequent times until expiration of the Prospectus Delivery
Period, and at the Closing Date complied and will comply in all
material respects with the applicable requirements and provisions
of the Securities Act, the Rules and Regulations and the Exchange
Act and did not and 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. The Prospectus, as amended or supplemented, as of its
date, or the time of first use within the meaning of the Rules and
Regulations, at all subsequent times until the expiration of the
Prospectus Delivery Period, and at the Closing Date, did not and
will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties set forth
in the two immediately preceding sentences do not apply to
statements in or omissions from the Registration Statement, any
Rule 462 Registration Statement, or any post-effective amendment
thereto, or the Prospectus, or any amendments or supplements
thereto, made in reliance upon and in conformity with written
information furnished to the Company by the Underwriter,
specifically for use in the preparation thereof.
(iv) Neither (A) any Issuer
General Free Writing Prospectus(es) issued at or prior to the Time
of Sale, the Statutory Prospectus and the information set forth in
Schedule V to this Agreement, all considered together
(collectively, the “ Time of Sale Disclosure Package
”), nor (B) any individual Issuer Limited-Use Free
Writing Prospectus, when considered together with the Time of Sale
Disclosure Package, included as of the Time of Sale any untrue
statement of a material fact or omitted as of the Time of Sale to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from any Statutory Prospectus included
in the Registration Statement or any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to
the Company by the Underwriter specifically for use therein. As
used in this paragraph and elsewhere in this Agreement:
(1) “ Time of Sale
” means 7:00 pm (Eastern time) on the date of this
Agreement.
(2) “ Statutory
Prospectus ” as of any time means the Prospectus that is
included in the Registration Statement immediately prior to that
time, including any document incorporated by reference therein and
any prospectus supplement deemed to be a part thereof. For purposes
of this definition, information contained in a form of prospectus
that is deemed retroactively to be a part of the Registration
Statement pursuant to Rule 430B under the Securities Act shall be
considered to be included in the Statutory Prospectus as of the
actual time that form of prospectus is filed with the Commission
pursuant to Rule 424(b) under the Securities Act.
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(3) “ Issuer Free Writing
Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Securities Act,
relating to the Shares that (A) is required to be filed with
the Commission by the Company, or (B) is exempt from filing
pursuant to Rule 433(d)(5)(i) under the Securities Act because it
contains a description of the Shares or of the offering that does
not reflect the final terms, in each case in the form filed or
required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company’s records pursuant
to Rule 433(g) under the Securities Act.
(4) “ Issuer General Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being specified in Schedule I
to this Agreement.
(5) “ Issuer Limited-Use
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not an Issuer General Free Writing
Prospectus.
(v) (A) Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the Prospectus Delivery Period or until any earlier date
that the Company notified or notifies the Underwriter as described
in Section 4(a)(iii)(B), did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, any
Statutory Prospectus or the Prospectus. The foregoing sentence does
not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Underwriter
specifically for use therein.
(B) (1) 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 Securities Act) of the
Shares and (2) at the date hereof, the Company was not and is
not an “ineligible issuer,” as defined in Rule 405
under the Securities Act, including the Company or any subsidiary
in the preceding three years not having been convicted of a felony
or misdemeanor or having been made the subject of a judicial or
administrative decree or order as described in Rule 405 (without
taking account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be considered an
ineligible issuer), nor an “excluded issuer” as defined
in Rule 164 under the Securities Act.
(C) Each Issuer Free Writing
Prospectus satisfied, as of its issue date and at all subsequent
times through the Prospectus Delivery Period, all other conditions
to use thereof as set forth in Rules 164 and 433 under the
Securities Act.
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(vi) The financial statements of the
Company, together with the related notes, included or incorporated
by reference in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus comply in all material
respects with the requirements of the Securities Act and the
Exchange Act and fairly present the financial condition of the
Company as of the dates indicated and the results of operations and
changes in cash flows for the periods therein specified in
conformity with generally accepted accounting principles
consistently applied throughout the periods involved; and the
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein. No other
financial statements or schedules are required to be included in
the Registration Statement, the Time of Sale Disclosure Package or
the Prospectus. To the Company’s knowledge,
McGladrey & Pullen, LLP, which has expressed its opinion
with respect to the financial statements and schedules filed as a
part of the Registration Statement and included in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus,
is an independent public accounting firm within the meaning of the
Securities Act and the Rules and Regulations and such accountants
are not and have not been in violation of the auditor independence
requirements of the Sarbanes-Oxley Act of 2002 (the “
Sarbanes-Oxley Act ”).
(vii) Each of the Company and its
subsidiaries has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and its subsidiaries has the
corporate power and authority to own its properties and conduct its
business as currently being carried on and as described in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus, and is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction in which it owns
or leases real property or in which the conduct of its business
makes such qualification necessary and in which the failure to so
qualify would have or is reasonably likely to result in a material
adverse effect upon the business, prospects, properties,
operations, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole,
or in its ability to perform its obligations under this Agreement
(“ Material Adverse Effect ”).
(viii) Except as contemplated in the
Time of Sale Disclosure Package and in the Prospectus, subsequent
to the respective dates as of which information is given in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus, (a) neither the Company nor any of its
subsidiaries has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions, or
declared or paid any dividends or made any distribution of any kind
with respect to its capital stock; and (b) there has not been
any change in the capital stock (other than a change in the number
of outstanding shares of Common Stock due to the issuance of shares
upon the exercise of outstanding options or warrants or the
issuance of restricted stock awards or restricted stock units under
the Company’s existing stock awards plan), any material
change in the short-term or long-term debt, or any issuance of
options, warrants, convertible securities or other rights to
purchase the capital stock, of the Company or any of its
subsidiaries (other than the issuance of options, restricted stock
awards or restricted stock units under the Company’s existing
stock awards plans), or the occurrence of any Material Adverse
Effect.
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(ix) Except as set forth in the Time
of Sale Disclosure Package and the Prospectus, there is not pending
or, to the knowledge of the Company, threatened or contemplated,
any action, suit or proceeding to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company is the subject before or by any court or governmental
agency, authority or body, or any arbitrator, which would
individually or in the aggregate be reasonably likely to result in
a Material Adverse Effect.
(x) This Agreement has been duly
authorized, executed and delivered by the Company, and constitutes
a valid, legal and binding obligation of the Company, enforceable
in accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity.
The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, agreement or
instrument to which the Company is a party or by which it is bound
or to which any of its property is subject, or any order, rule,
regulation or decree of any court or governmental agency or body
having jurisdiction over the Company or any of its properties
except for violations and defaults that individually or in the
aggregate would not be reasonably likely to result in a Material
Adverse Effect. The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, the
Company’s charter or by-laws. No consent, approval,
authorization or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement or for the consummation of the
transactions contemplated hereby, including the issuance or sale of
the Shares by the Company, except as may be required under the
Securities Act or state securities or blue sky laws; and the
Company has the power and authority to enter into this Agreement
and to authorize, issue and sell the Shares as contemplated by this
Agreement.
(xi) All of the issued and
outstanding shares of capital stock of the Company, including the
outstanding shares of Common Stock, are duly authorized and validly
issued, fully paid and nonassessable, have been issued in
compliance with all federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities that have not been
waived in writing (a copy of which has been delivered to counsel to
the Underwriter); the Shares that may be sold hereunder by the
Company have been duly authorized and, when issued, delivered and
paid for in accordance with the terms of this Agreement, will have
been validly issued and will be fully paid and nonassessable; and
the capital stock of the Company, including the Common Stock,
conforms to the description thereof in the Registration Statement,
the Time of Sale Disclosure Package and the Prospectus. Except as
otherwise stated in the Registration Statement, the Time of Sale
Disclosure Package or the Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common
Stock pursuant to the Company’s charter, by-laws or any
agreement or other instrument to which the Company is a party or
by
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which the Company is bound. Neither
the filing of the Registration Statement nor the offering or sale
of the Shares as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any shares of Common
Stock or other securities of the Company that have not been waived.
All of the issued and outstanding shares of capital stock of each
of the Company’s subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise described in the Registration Statement, the
Time of Sale Disclosure Package or the Prospectus and except for
any directors’ qualifying shares, the Company owns of record
and beneficially, free and clear of any security interests, claims,
liens, proxies, equities or other encumbrances, all of the issued
and outstanding shares of such stock. Except as described in the
Registration Statement, in the Time of Sale Disclosure Package or
in the Prospectus, there are no options, warrants, agreements,
contracts or other rights in existence to purchase or acquire from
the Company or any subsidiary of the Company any shares of the
capital stock of the Company or any subsidiary of the Company. The
Company has an authorized and outstanding capitalization as set
forth in the Registration Statement, the Time of Sale Disclosure
Package and the Prospectus (except as outstanding capitalization
may have changed as a result of the exercise of previously
outstanding stock options or warrants or subsequent
thereto).
(xii) The Company and each of its
subsidiaries holds, and is operating in compliance in all material
respects with, all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders of any
governmental or self-regulatory body required for the conduct of
its business, and all such franchises, grants, authorizations,
licenses, permits, easements, consents, certifications and orders
are valid and in full force and effect in all material respects;
and the Company and each of its subsidiaries is in compliance in
all material respects with all applicable federal, state, local and
foreign laws, regulations, orders and decrees.
(xiii) The Company and its
subsidiaries have good and marketable title to all property
(whether real or personal) described in the Registration Statement,
in the Time of Sale Disclosure Package and in the Prospectus as
being owned by them that are material to the business of the
Company, in each case free and clear of all liens, claims, security
interests, other encumbrances or defects except such as are
described in the Registration Statement, in the Time of Sale
Disclosure Package or in the Prospectus. The property held under
lease by the Company and its subsidiaries is held by them under
valid, subsisting and enforceable leases with only such exceptions
with respect to any particular lease as do not interfere in any
material respect with the conduct of the business of the Company or
its subsidiaries.
(xiv) The Company and each of its
subsidiaries owns or possesses or has valid right to use all
patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service mark registrations,
copyrights, licenses, inventions, trade secrets and rights
necessary for the conduct of the business of the Company and its
subsidiaries as currently carried on and as described in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus; except as stated in the Registration Statement, the
Time of Sale Disclosure Package or the Prospectus, to the knowledge
of the Company, action or use by the Company or any of its
subsidiaries will not involve or give rise to any
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infringement of, or license or
similar fees for, any patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service mark
registrations, copyrights, licenses, inventions, trade secrets or
other similar rights of others material to the business or
prospects of the Company and neither the Company nor any of its
subsidiaries has received any notice alleging any such infringement
or fee.
(xv) Neither the Company nor any of
its subsidiaries is in violation of its respective charter or
by-laws or in breach of or otherwise in default, and no event has
occurred which, with notice or lapse of time or both, would
constitute such a default, in the performance of any material
obligation, agreement or condition contained in any bond,
debenture, note, indenture, loan agreement or any other contract,
lease or other instrument to which is subject or by which any of
them may be bound, or to which any of the material property or
assets of the Company or any of its subsidiaries is
subject.
(xvi) The Company and its
subsidiaries have timely filed all federal, state and local income
tax returns required to be filed and are not in default in the
payment of any taxes that were payable pursuant to said returns or
any assessments with respect thereto, other than any that the
Company or any of its subsidiaries is contesting in good faith
which are not material in the aggregate.
(xvii) The Company has not
distributed and will not distribute any prospectus or other
offering material in connection with the offering and sale of the
Shares other than the Time of Sale Disclosure Package or the
Prospectus or other materials permitted by the Securities Act to be
distributed by the Company; provided, however, that, except as set
forth on Schedule I , the Company has not made and will not
make any offer relating to the Shares that would constitute a
“free writing prospectus” as defined in Rule 405 under
the Securities Act, except in accordance with the provisions of
Section 4(a)(xiv) of this Agreement.
(xviii) The Common Stock is
registered pursuant to Section 12(g) of the Exchange Act and
is included or approved for inclusion on the Nasdaq Global Market
and the Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting the Common Stock from the
Nasdaq Global Market (although the Company may choose to list its
securities on the NYSE) nor has the Company received any
notification that the Commission or the Nasdaq Global Market is
contemplating terminating such registration or listing. The Company
has complied in all material respects with the applicable
requirements of the Nasdaq Global Market for maintenance of
inclusion of the Common Stock thereon. The Company has filed and
had approved an application to include the Shares on the Nasdaq
Global Market.
(xix) Other than the subsidiaries of
the Company listed on Schedule IV hereto, the Company,
directly or indirectly, owns no capital stock or other equity or
ownership or proprietary interest in any corporation, partnership,
association, trust or other entity.
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(xx) The Company maintains a system
of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance
with management’s general or specific authorization;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (C) access to assets is permitted only in accordance
with management’s general or specific authorization; and
(D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. Except as described in the
Registration Statement, the Time of Sale Disclosure Package or the
Prospectus, since December 31, 2008, there has been no change
in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting.
(xxi) Other than as contemplated by
this Agreement, the Company has not incurred any liability for any
finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(xxii) The Company carries, or is
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of its business and the value of its
properties and as is customary for companies engaged in similar
businesses in similar industries.
(xxiii) The Company is not and,
after giving effect to the offering and sale of the Shares, will
not be an “investment company,” as such term is defined
in the Investment Company Act of 1940, as amended.
(xxiv) The conditions for use the
Company’s use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied. On the date of the
initial filing of the Registration Statement with the Commission,
and on the date of this Agreement, the Company also complied with
the standards for using Form S-3 as in place prior to
October 21, 1992.
(xxv) The documents incorporated by
reference in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and were filed on a timely basis
with the Commission and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; any
further documents so filed and incorporated by reference in the
Registration Statement, the Time of Sale Disclosure Package or the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the
Exchange Act, and will not contain an 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.
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(xxvi) The Company is in compliance
with all applicable provisions of the Sarbanes-Oxley Act and the
rules and regulations of the Commission thereunder that are
effective with respect to the Company and its subsidiaries on the
date of this Agreement, except where such noncompliance is not
individually or in the aggregate reasonably likely to result in a
Material Adverse Effect.
(xxvii) The Company has established
and maintains disclosure controls and procedures (as defined in
Rules 13a-14 and 15d-14 under the Exchange Act) and such controls
and procedures are effective in ensuring that material information
relating to the Company, including its subsidiaries, is made known
to the principal executive officer and the principal financial
officer. The Company has utilized such controls and procedures in
preparing and evaluating the disclosures in the Registration
Statement, the Time of Sale Disclosure Package and the
Prospectus.
(xxviii) The Company has not taken,
directly or indirectly, any action that is designed to or that has
constituted or that would 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.
(xxix) No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to
the knowledge of the Company, is imminent that individually or in
the aggregate is reasonably likely to result in a Material Adverse
Effect.
(xxx) Except as disclosed in the
Registration Statement, the Time of Sale Disclosure Package or the
Prospectus, neither the Company nor any of its subsidiaries is
(A) in violation of any statute, rule, regulation, decision or
order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, “ Environmental Laws ”),
(B) owns or operates any real property contaminated with any
substance that is subject to any Environmental Laws, (C) is
liable for any off-site disposal or contamination pursuant to any
Environmental Laws, or (D) is subject to any claim relating to
any Environmental Laws, which violation, contamination, liability
or claim is individually or in the aggregate reasonably likely to
result in a Material Adverse Effect; and the Company is not aware
of any pending investigation that might lead to such a
claim.
(xxxi) Each “forward-looking
statement” (within the meaning of Section 27A of the Act
or Section 21E of the Exchange Act) contained or incorporated
by reference in the Registration Statement, the Time of Sale
Disclosure Package or the Prospectus has been made or reaffirmed
with a reasonable basis and in good faith.
(xxxii) All statistical or
market-related data included or incorporated by reference in the
Registration Statement, the Time of Sale Disclosure Package or the
Prospectus are based on or derived from sources that the Company
reasonably believes to be reliable and accurate, and the Company
has obtained the written consent to the use of such data from such
sources to the extent required.
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(xxxiii) Except as disclosed in the
Registration Statement, the Time of Sale Disclosure Package or the
Prospectus, neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, employee,
representative, agent or affiliate of the Company or any of its
subsidiaries, is aware of or has taken any action, directly or
indirectly, that could result in a violation by the Company or such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder; and the Company and its
subsidiaries and, to the knowledge of the Company, its
representatives, agents and affiliates have instituted and maintain
policies and procedures designed to ensure continued compliance
therewith.
(xxxiv) 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; and no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator or non-governmental authority
involving the Company or any of its subsidiaries with respect
thereto is pending or, to the Company’s knowledge,
threatened.
(xxxv) Neither the Company nor any
of its subsidiaries nor, to the knowledge of the Company, any
director, officer, employee, representative, agent 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. Treasury Department (“ OFAC ”); and
the Company will not directly or indirectly use the proceeds of the
offering of the Shares contemplated hereby, or lend, contribute or
otherwise make available such proceeds to any person or entity for
the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(xxxvi) To the Company’s
knowledge, there are no affiliations or associations between
(i) any member of FINRA and (ii) the Company or any of
the Company’s officers, directors or 5% or greater security
holders or any beneficial owner of the Company’s unregistered
equity securities that were acquired at any time on or after the
180th day immediately preceding the date the Registration Statement
was initially filed with the Commission, except as disclosed in the
Registration Statement (excluding the exhibits thereto), the Time
of Sale Disclosure Package or the Prospectus.
(b) Any certificate signed by any
officer of the Company and delivered to the Underwriter or to the
Underwriter’s Counsel shall be deemed a representation and
warranty by the Company to the Underwriter as to the matters
covered thereby.
11
3. Purchase, Sale and Delivery
of Shares.
(a) On the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company
agrees to issue and sell the Underwritten Shares to the
Underwriter, and the Underwriter agrees to purchase the
Underwritten Shares from the Company. The purchase price for each
share of the Shares shall be $8.184 per share (the “ Per
Share Price ”). The Company agrees to pay to the
Underwriter the compensation as set forth in Schedule V
hereto.
In addition, the Company hereby
grants to the Underwriter the option to purchase some or all of the
Additional Shares and, upon the basis of the warranties and
representations and subject to the terms and conditions herein set
forth, the Underwriter shall have the right to purchase from the
Company (subject to such adjustment as the Underwriter shall
determine to avoid fractional shares), all or a portion of the
Additional Shares at the Per Share Price as may be necessary to
cover over-allotments made in connection with the offering of the
Underwritten Shares. This option may be exercised by the
Underwriter at any time (but not more than once) on or before the
thirtieth day following the date hereof, by written notice to the
Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised, and
the date and time when the Additional Shares are to be delivered
(such date and time being herein referred to as the “
Option Closing Date ”); provided ,
however , that the Option Closing Date shall not be earlier
than the Closing Date (as defined below) nor earlier than the
second business day after the date on which the option shall have
been exercised nor later than the fifth business day after the date
on which the option shall have been exercised unless the Company
and you otherwise agree.
Payment of the purchase price and
delivery for the Additional Shares shall be made at the Option
Closing Date in the same manner and at the same office as the
payment for the Underwritten Shares as set forth in subparagraph
(b) below. For the purpose of expediting the checking of the
certificate for the Additional Shares by you, the Company agrees to
make a form of such certificate available to you for such purpose
at least one full business day preceding the Option Closing
Date.
(b) The Underwritten Shares will be
delivered by the Company to the Underwriter against payment of the
purchase price therefor by wire transfer of same day funds payable
to the order of the Company, as appropriate, at the offices of Roth
Capital Partners, LLC, 24 Corporate Plaza, Newport Beach, CA 92660,
or such other location as may be mutually acceptable, at 6:00 a.m.
PST on the third (or if the Underwritten Shares are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30
p.m. Eastern time, the fourth) full business day following the date
hereof, or at such other time and date as the Underwriter and the
Company determine pursuant to Rule 15c6-1(a) under the Exchange
Act, such time and date of delivery being herein referred to as the
“ Closing Date .” If the Underwriter so elects,
delivery of the Underwritten Shares may be made by credit through
full fast transfer to the account at The Depository Trust Company
designated by the Underwriter. Certificates representing the
Underwritten Shares, in definitive form and in such denominations
and registered in such names as the Underwriter may request upon at
least two business days’ prior notice to the Company, will be
made available for checking and packaging not later than 10:30 a.m.
PST on the business day next preceding the Closing Date at the
above addresses, or such other location as may be mutually
acceptable.
12
4.
Covenants.
(a) The Company covenants and agrees
with the Underwriter as follows:
(i) During the period beginning on
the date hereof and ending on the later of the Closing Date or such
date, as in the opinion of counsel for the Underwriter, the
Prospectus is no longer required by law to be delivered (or in lieu
thereof the notice referred to in Ru
