Exhibit 1.1
EXECUTION COPY
UNION DRILLING,
INC.
3,000,000 Shares of Common
Stock
UNDERWRITING
AGREEMENT
June 4, 2009
JEFFERIES & COMPANY,
INC.
As Underwriter
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Union Drilling, Inc., a Delaware
corporation (the “ Company ”), proposes to issue
and sell to Jefferies & Company, Inc. (the “
Underwriter ”) an aggregate of 3,000,000 shares and,
at the option of the Underwriter, up to an additional 450,000
shares, of Common Stock, par value $0.01 per share (the “
Stock ”), of the Company. The shares to be sold by the
Company are herein called the “ Underwritten Shares
” and the additional shares to be sold by the Company are
herein called the “ Option Shares ”. The
Underwritten Shares and the Option Shares are herein referred to as
the “ Shares .”
The Company hereby confirms its
agreement with the Underwriter concerning the purchase and sale of
the Shares, as follows:
1. Registration Statement .
The Company has prepared and filed with the Securities and Exchange
Commission (the “ Commission ”) under the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “
Securities Act ”), a shelf registration statement on
Form S-3 (File No. 333-151013), including a base prospectus
(the “ Base Prospectus ”), relating to the
Shares. Such registration statement, as amended, including the
financial statements, exhibits and schedules thereto, in the form
in which it was declared effective by the Commission under the
Securities Act, including all documents incorporated or deemed to
be incorporated by reference therein and any information deemed to
be a part thereof at the time of effectiveness pursuant to Rule
430B under the Securities Act or the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the “ Exchange Act ”),
is called the “ Registration Statement ”. Any
registration statement filed by the Company pursuant to Rule 462(b)
under the Securities Act is called the “ Rule 462(b)
Registration Statement ,” and from and after the date and
time of filing of the Rule 462(b) Registration Statement the term
“ Registration Statement ” shall include the
Rule 462(b) Registration Statement. Such prospectus, in the form
first used by the Underwriter to confirm sales of the Shares or in
the form first made available to the Underwriter by the Company to
meet requests of purchasers pursuant to Rule 173 under the
Securities Act, is called the “ Prospectus ”.
The preliminary prospectus supplement dated June 3, 2009
describing the Shares and the offering thereof, together with the
Base Prospectus, is called the “ Preliminary
Prospectus ,” and the Preliminary Prospectus and any
other preliminary prospectus supplement
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to the Base Prospectus that describes the Shares
and the offering thereof and is used prior to the filing of the
Prospectus (as defined below), together with the Base Prospectus,
is called a “ preliminary prospectus .” As used
herein, the term “ Prospectus ” shall mean the
final prospectus supplement to the Base Prospectus that describes
the Shares and the offering thereof (the “ Final
Prospectus Supplement ”), together with the Base
Prospectus, in the form first used by the Underwriter to confirm
sales of the Shares or in the form first made available to the
Underwriter by the Company to meet requests of purchasers pursuant
to Rule 173 under the Securities Act. As used herein, “
Applicable Time ” is 5:30 p.m. (New York time) on
June 4, 2009. As used herein, “ free writing
prospectus ” has the meaning set forth in Rule 405 under
the Securities Act, and “ Time of Sale Prospectus
” means the Preliminary Prospectus, as amended or
supplemented immediately prior to the Applicable Time, together
with the free writing prospectuses, if any, and any other
information identified in Schedule I hereto, and each
“road show” (as defined in Rule 433 under the
Securities Act), if any, related to the offering of the Shares
contemplated hereby that is a “written communication”
(as defined in Rule 405 under the Securities Act) (each such road
show, a “ Road Show ”). As used herein, the
terms “Registration Statement,” “Rule 462(b)
Registration Statement”, “Preliminary
Prospectus”, “preliminary prospectus,”
“Base Prospectus,” “Time of Sale
Prospectus” and “Prospectus” shall include the
documents incorporated and deemed to be incorporated by reference
therein. All references in this Agreement to amendments or
supplements to the Registration Statement, the Rule 462(b)
Registration Statement, Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus, the Time of Sale Prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement, the Rule
462(b) Registration Statement, the Preliminary Prospectus, any
preliminary prospectus, the Base Prospectus, the Time of Sale
Prospectus or the Prospectus, as the case may be. All references in
this Agreement to (i) the Registration Statement, the 462(b)
Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus or the Prospectus, or any
amendments or supplements to any of the foregoing, shall include
any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System (“
EDGAR ”) and (ii) the Prospectus shall be deemed
to include the “ electronic Prospectus ”
provided for use in connection with the offering of the Shares as
contemplated by Section 4(a)(ii) of this Agreement. All
references in this Agreement to financial statements and schedules
and other information which are “ contained ,”
“ included ” or “ stated ” in
the Registration Statement, the Rule 462(b) Registration Statement,
the Preliminary Prospectus, any preliminary prospectus, the Base
Prospectus, the Time of Sale Prospectus or the Prospectus (and all
other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference
therein, as the case may be; and all references in this Agreement
to amendments or supplements to the Registration Statement, the
Rule 462(b) Registration Statement, the Preliminary Prospectus, any
preliminary prospectus, the Base Prospectus, the Time of Sale
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(b) Registration Statement, the
Preliminary Prospectus, any preliminary prospectus, the Base
Prospectus, the Time of Sale Prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the
Exchange Act which is or is deemed to be incorporated by reference
in the Registration Statement, the Rule 462(b) Registration
Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus, the
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Time of Sale Prospectus or the Prospectus, as
the case may be. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Time of Sale Prospectus.
2. Purchase of the Shares by the
Underwriter . (a) The Company agrees to sell the Shares to
the Underwriter as provided in this Agreement, and the Underwriter,
on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, agrees
to purchase from the Company at a purchase price per share of
$7.8169 (the “ Purchase Price ”) the
Underwritten Shares.
In addition, the Company agrees to
sell the Option Shares to the Underwriter and the Underwriter shall
have the option to purchase at its election up to 450,000 Option
Shares at the Purchase Price. The Underwriter, on the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, shall have the option to purchase
from the Company at the Purchase Price that portion of the number
of Option Shares as to which such election shall have been
exercised.
The Underwriter may exercise the
option to purchase the Option Shares at any time and from time to
time on or before the thirtieth day following the date of this
Agreement, by written notice from the Underwriter to the Company.
Such notice shall set forth the aggregate number of Option Shares
as to which the option is being exercised and the date and time
when the Option Shares are to be delivered and paid for which may
be the same date and time as the Closing Date (as hereinafter
defined) but shall not be earlier than the Closing Date nor later
than the tenth full business day (as hereinafter defined) after the
date of such notice (unless such time and date are postponed in
accordance with the provisions of Section 11 hereof). Any such
notice shall be given at least two Business Days prior to the date
and time of delivery specified therein.
(a) The Company understands that the
Underwriter intends to make a public offering of the Shares as soon
after the effectiveness of this Agreement as in the judgment of the
Underwriter is advisable, and initially to offer the Shares on the
terms set forth in the Time of Sale Prospectus. The Company
acknowledges and agrees that the Underwriter may offer and sell
Shares to or through any affiliate of the Underwriter and that any
such affiliate may offer and sell Shares purchased by it to or
through the Underwriter.
(b) Payment for the Shares shall be
made by wire transfer in immediately available funds to the account
specified by the Company to the Underwriter. The time and date of
such payment for the Underwritten Shares are referred to herein as
the “ Closing Date ” and the time and date for
such payment for the Option Shares, if other than the Closing Date,
are herein referred to as the “ Additional Closing
Date .”
Payment for the Shares to be
purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Underwriter
for its account of the Shares to be purchased on such date in
definitive form registered in such names and in such denominations
as the Underwriter shall request in writing not later than two full
business days prior to the Closing Date or the Additional Closing
Date, as the case may be, with any transfer taxes payable in
connection with the sale of the Shares duly paid by the
Company.
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(c) The Company acknowledges and
agrees that (i) the Underwriter is acting solely in the
capacity of an arm’s length contractual counterparty to the
Company with respect to the offering of Shares contemplated hereby
(including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person, (ii) the
Underwriter and its affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the
Company and (iii) the Underwriter is not advising the Company
or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company shall consult
with their own advisors concerning such matters and shall be
responsible for making their own independent investigation and
appraisal of the transactions contemplated hereby, and the
Underwriter shall have no responsibility or liability to the
Company with respect thereto. Any review by the Underwriter of the
Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriter and shall not be on behalf of the
Company.
3. Representations and Warranties
of the Company . The Company represents and warrants to the
Underwriter, as of the date of this Agreement, as of the Closing
Date and as of each Additional Closing Date, if any, and covenants
with the Underwriter, that:
(a) Preliminary Prospectus and
Time of Sale Prospectus . No order preventing or suspending the
use of the Preliminary Prospectus or any preliminary prospectus has
been issued by the Commission and no proceeding for that purpose
has been initiated or threatened by the Commission, and the
Preliminary Prospectus and each preliminary prospectus, at the time
of filing thereof, complied in all material respects with the
Securities Act and if filed by electronic transmission pursuant to
EDGAR (except as may be permitted by Regulation S-T under the
Securities Act), was identical to the copy thereof delivered to the
Underwriter for use in connection with the offer and sale of the
Shares; and the Preliminary Prospectus and any preliminary
prospectus did not contain any 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, in the light of
the circumstances under which they were made, not misleading; as of
the Applicable Time, the Time of Sale Prospectus did not, and at
the time of each sale of the Shares and at the Closing Date, the
Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, will not, contain any 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, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by
the Underwriter expressly for use in the Preliminary Prospectus,
any preliminary prospectus or the Time of Sale Prospectus, it being
understood and agreed that the only such information furnished by
the Underwriter to the Company consists of the information
described in Section 6(b) below.
(b) Registration Statement,
Prospectus and Free Writing Prospectuses . The Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto have been declared effective by
the Commission under the Securities Act. No order
(i) suspending the effectiveness of the Registration
Statement, any Rule 462(b)
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Registration Statement, any post-effective
amendment or any part thereof or (ii) preventing or suspending
the use of any free writing prospectus has been issued by the
Commission and no proceeding for that purpose has been initiated or
threatened by the Commission. The Prospectus and any free writing
prospectus when filed complied in all material respects with the
Securities Act and, if filed by electronic transmission pursuant to
EDGAR (except as may be permitted by Regulation S-T under the
Securities Act), was identical to the copy thereof delivered to the
Underwriter for use in connection with the offer and sale of the
Shares; as of the applicable effective date and at all subsequent
times, the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto complied and
will comply in all material respects with the Securities 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 in order to make the statements therein not
misleading; and as of the applicable filing date of the Prospectus
and any amendment or supplement thereto and at all subsequent
times, the Prospectus 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 in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by
the Underwriter expressly for use in the Registration Statement,
any Rule 462(b) Registration Statement, any free writing prospectus
and the Prospectus and any amendment or supplement thereto, it
being understood and agreed that the only such information
furnished by the Underwriter to the Company consists of the
information described in Section 6(b) below.
The Company is not an
“ineligible issuer” in connection with the offering of
the Shares pursuant to Rules 164, 405 and 433 under the Securities
Act. Any free writing prospectus that the Company is required to
file pursuant to Rule 433(d) under the Securities Act has been, or
will be, filed with the Commission in accordance with the
requirements of the Securities Act. Each free writing prospectus
that the Company has filed, or is required to file, pursuant to
Rule 433(d) under the Securities Act or that was prepared by or
behalf of or used or referred to by the Company complies or will
comply in all material respects with the requirements of Rule 433
under the Securities Act including timely filing with the
Commission or retention where required and legending, and each such
free writing prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Shares did not, does not and will not include any information that
conflicted, conflicts with or will conflict with the information
contained in the Registration Statement, the Preliminary
Prospectus, any preliminary prospectus, the Time of Sale Prospectus
or the Prospectus, including any document incorporated by reference
therein. Except for the free writing prospectuses, if any,
identified in Schedule I hereto, and electronic road shows, if any,
furnished to you before first use, the Company has not prepared,
used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus.
(c) Documents Incorporated by
Reference . The documents incorporated by reference in the Time
of Sale Prospectus 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 and
the Exchange Act, as applicable, and the rules and
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regulations of the Commission thereunder, and
none of such documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; any further documents so filed and incorporated by
reference in the Time of Sale Prospectus or the Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act and the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such
documents will contain any 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;
and no such documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of this Agreement and the execution
of this Agreement.
(d) Distribution of Offering
Material By the Company . The Company has not distributed and
will not distribute, prior to the later of (i) the expiration
or termination of the option granted to the Underwriter in
Section 2 and (ii) the completion of the
Underwriter’s distribution of the Shares, any offering
material in connection with the offering and sale of the Shares
other than the Time of Sale Prospectus, the Prospectus, any free
writing prospectus reviewed and consented to by the Underwriter, or
the Registration Statement.
(e) Financial Statements .
The financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the
Preliminary Prospectus, any preliminary prospectus, the Time of
Sale Prospectus and the Prospectus comply in all material respects
with the applicable requirements of the Securities Act and the
Exchange Act, as applicable, and present fairly the financial
position of the Company (and its former subsidiaries, as
applicable) as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby, and the
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein; the other
financial information included in the Registration Statement, the
Preliminary Prospectus, the Time of Sale Prospectus and the
Prospectus has been derived from the accounting records of the
Company (and its former subsidiaries, as applicable) and presents
fairly the information shown thereby; and any pro forma financial
information and related notes thereto included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus has been
prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and the
assumptions underlying such pro forma financial information are
reasonable and are set forth in the Registration Statement, the
Time of Sale Prospectus and the Prospectus.
(f) No Material Adverse
Change . Except as otherwise disclosed in the Time of Sale
Prospectus, subsequent to the respective dates as of which
information is given in the Time of Sale Prospectus, (i) there
has not been any change in the capital stock or long-term debt of
the Company (other than borrowings or repayments under the
Company’s Revolving Credit Facility and Security Agreement by
the Company, as Borrower and PNC Bank, National Association, as
Agent and Lender, as amended or supplemented from time to time (the
“ Credit Agreement ”) or any other borrowings
permitted by the Credit Agreement), or any dividend or
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distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock,
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
properties, management, financial position, stockholders’
equity, results of operations or prospects of the Company taken as
a whole; (ii) \the Company has not entered into any
transaction or agreement that is material to the Company or
incurred any liability or obligation, direct or contingent, that is
material to the Company; and (iii) the Company has not
sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(g) Organization and Good
Standing . The Company has been duly organized and is existing
and in good standing under the laws of the jurisdiction of its
organization, is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such
qualification, and has all power and authority necessary to own or
hold its properties and to conduct the businesses in which it is
engaged, except where the failure to be so qualified or have such
power or authority would not, individually or in the aggregate,
have a material adverse effect on the business, properties,
management, financial position, stockholders’ equity, results
of operations or prospects of the Company (a “ Material
Adverse Effect ”). The Company does not own or control,
directly or indirectly, any corporation, association or other
entity.
(h) Capitalization . The
Company has an authorized capitalization as set forth in the Time
of Sale Prospectus and the Prospectus under the heading “
Capitalization ”; all the outstanding shares of
capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable and are not
subject to any pre-emptive or similar rights; except as described
in or expressly contemplated by the Time of Sale Prospectus and the
Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company, or any
contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any capital stock of the
Company, any such convertible or exchangeable securities or any
such rights, warrants or options; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Time of Sale Prospectus and the
Prospectus.
(i) Underwriting Agreement .
This Agreement has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company, enforceable
in accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general
equitable principles.
(j) The Shares . The Shares
to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid
for as provided herein, will be duly and validly issued and will be
fully paid and nonassessable and will conform to the descriptions
thereof in the Time of Sale Prospectus and the Prospectus; and the
issuance of the Shares is not subject to any preemptive or similar
rights.
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(k) No Violation or Default .
The Company is not (i) in violation of its charter or by-laws;
(ii) in default, and no event has occurred that, with notice
or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company is a party or
by which the Company is bound or to which any of the property or
assets of the Company is subject; or (iii) in violation of any
law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for
any such default or violation that would not, individually or in
the aggregate, have a Material Adverse Effect.
(l) No Conflicts . The
execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares to be sold by the
Company hereunder and the consummation by the Company of the
transactions contemplated by this Agreement 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, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of
the Company is subject, (ii) result in any violation of the
provisions of the charter or by-laws of the Company or
(iii) result in the violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority.
(m) No Consents Required . No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of this Agreement, the issuance and sale
of the Shares to be sold by the Company hereunder and the
consummation by the Company of the other transactions contemplated
by this Agreement, except for the registration of the Shares under
the Securities Act and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under
applicable state securities laws in connection with the purchase
and distribution of the Shares by the Underwriter.
(n) Legal Proceedings .
Except as described in the Time of Sale Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company is or may be a party or to
which any property of the Company is or may be the subject that,
individually or in the aggregate, if determined adversely to the
Company, could reasonably be expected to have a Material Adverse
Effect or materially and adversely affect the ability of the
Company to perform its obligations under this Agreement; no such
investigations, actions, suits or proceedings are threatened or, to
the best knowledge of the Company, contemplated by any governmental
or regulatory authority or threatened by others; and (i) there
are no current or pending legal, governmental or regulatory
actions, suits or proceedings that are required under the
Securities Act to be described in the Time of Sale Prospectus or
the Prospectus that are not so described and (ii) there are no
statutes, regulations or
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contracts or other documents that are required
under the Securities Act to be filed as exhibits to the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2008 (the “ Annual Report
”) or described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus that are not so filed or
described.
(o) Independent Accountants .
Ernst & Young LLP, who have certified certain financial
statements of the Company (and its former subsidiaries, as
applicable) are (i) independent public accountants with
respect to the Company as required by the Securities Act and the
Exchange Act and (ii) in compliance with the applicable
requirements relating to qualification of accountants under Rule
2-01 of Regulation S-X.
(p) Title to Real and Personal
Property . The Company has good and marketable title in fee
simple (in the case of real property) to, or has valid rights to
lease or otherwise use, all items of real and personal property
that are material to its business, in each case free and clear of
all liens, encumbrances, claims and defects and imperfections of
title except those that (i) secure the Company’s
obligations under the Credit Agreement and its other financing
arrangements), (ii) do not materially interfere with the use
made and proposed to be made of such property by the Company or
(iii) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(q) Title to Intellectual
Property . The Company owns or possesses adequate rights to use
all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct of its business; and the conduct of the Company’s
business will not conflict in any material respect with any such
rights of others, and the Company has not received any notice of
any claim of infringement or conflict with any such rights of
others.
(r) No Undisclosed
Relationships . No relationship, direct or indirect, exists
between or among the Company, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company, on
the other, that is required by the Securities Act to be described
in the Registration Statement, the Time of Sale Prospectus and the
Prospectus and that is not so described.
(s) Investment Company Act .
The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Time of Sale Prospectus and the Prospectus, will
not be required to register as an “investment company”
or an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, “ Investment Company Act
”).
(t) Public Utility Holding
Company Act . The Company is not a “holding
company” or a “subsidiary company” of a holding
company or an “affiliate” thereof within the meaning of
the Public Utility Holding Company Act of 1935, as
amended.
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(u) Taxes . The Company has
paid all federal, state, local and foreign taxes and filed all tax
returns required to be paid or filed through the date hereof; and
except as otherwise disclosed in the Time of Sale Prospectus and
the Prospectus, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any
of its properties or assets, except where such failure to file or
pay or such deficiencies could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(v) Licenses and Permits .
The Company possesses all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of its properties or the conduct of its business
as described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, except where the failure to possess
or make the same would not, individually or in the aggregate, have
a Material Adverse Effect; and the Company has not received notice
of any revocation or modification of any such license, certificate,
permit or authorization or has any reason to believe that any such
license, certificate, permit or authorization will not be renewed
in the ordinary course.
(w) No Labor Disputes . No
labor disturbance by or dispute with employees of the Company
exists or, to the best knowledge of the Company, is contemplated or
threatened.
(x) Compliance With Environmental
Laws . The Company (i) is in compliance with any and all
applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
“ Environmental Laws ”); (ii) has received
and is in compliance with all permits, licenses or other approvals
required of the Company under applicable Environmental Laws to
conduct its business; and (iii) has not received notice of any
actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except in any such case for any
such failure to comply, or failure to receive required permits,
licenses or approvals, or liability as would not, individually or
in the aggregate, have a Material Adverse Effect.
(y) Compliance With ERISA .
Each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
(“ ERISA ”), that is maintained, administered or
contributed to by the Company or any of its affiliates for
employees or former employees of the Company and its affiliates has
been maintained in compliance with its terms and the requirements
of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of
1986, as amended (the “ Code ”); no prohibited
transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any
such plan excluding transactions effected pursuant to a statutory
or administrative exemption; and for each such plan that is subject
to the funding rules of Section 412 of the Code or
Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of
the assets of each such plan (excluding for these purposes accrued
but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions.
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(z) Accounting Controls . The
Company makes and keeps accurate books and records and maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (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 existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. There
has not been and is no material weakness in the
Company’s internal control over financial reporting (whether
or not remediated) and since December 31, 2008, there has
been no significant change in the Company’s internal
control over financial reporting that has materially adversely
affected, or is reasonably likely to materially adversely affect,
the Company’s internal control over financial
reporting.
(aa) Disclosure Controls .
The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) of the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls
and procedures have been designed to ensure that material
information relating to the Company is made known to the
Company’s principal executive officer and principal financial
officer by others within those entities. Such disclosure controls
and procedures are effective.
(bb) Insurance . The Company
has insurance covering its properties, operations, personnel and
business, which insurance is in amounts and insures against such
losses and risks as are adequate to protect the Company and its
business; and the Company has not (i) received notice from any
insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to
continue such insurance or (ii) 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 at
reasonable cost from similar insurers as may be necessary to
continue its business.
(cc) No Unlawful Payments .
Neither the Company nor, to the best knowledge of the Company, any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds;
(iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
(dd) No Broker’s Fees .
The Company is not a party to any contract, agreement or
understanding with any person (other than this Agreement) that
would give rise to a valid claim against the Company or the
Underwriter for a brokerage commission, finder’s fee or like
payment in connection with the offering and sale of the
Shares.
(ee) No Registration Rights .
Except for the Selling Stockholders set forth in the Registration
Statement, no person has the right to require the Company to
register any securities for sale under the Registration Statement
or by reason of the issuance and sale of the Shares to be sold by
the Company hereunder.
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(ff) No Stabilization . The
Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the
Shares.
(gg) Margin Rules . Neither
the issuance, sale and delivery of the Shares nor the application
of the proceeds thereof by the Company as described in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of
such Board of Governors.
(hh) Forward-Looking
Statements . No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of
the Exchange Act) contained in the Registration Statement, the Time
of Sale Prospectus and the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
(ii) Statistical and Market
Data . Nothing has come to the attention of the Company that
has caused the Company to believe that the statistical and
market-related data included in the Registration Statement, the
Time of Sale Prospectus and the Prospectus is not based on or
derived from sources that are reliable and accurate in
