Exhibit 1.1
FBR CAPITAL MARKETS
CORPORATION
21,500,000 Shares of Common
Stock
UNDERWRITING
AGREEMENT
June 15, 2009
FBR CAPITAL MARKETS &
CO.
1001 19 th Street North
Arlington, Virginia 22209
as Representative of the several
Underwriters
Dear Sirs:
FBR Capital Markets Corporation, a
Virginia corporation (the “ Company ”), and FBR
Securities Investment HY, LLC, a Virginia limited liability company
(the “ Selling Stockholder ”), and a wholly
owned subsidiary of Arlington Asset Investment Corp. (formerly
known as Friedman, Billings, Ramsey Group, Inc.), each confirms its
agreement with each of the Underwriters listed on Schedule I
hereto (collectively, the “ Underwriters ”), for
which FBR Capital Markets & Co. is acting as
representative (in such capacity, the “ Representative
”), with respect to (i) the sale of 21,500,000 shares
(the “ Initial Shares ”) of Common Stock, par
value $.001 per share, of the Company (the “ Common
Stock ”), of which 20,000,000 Initial Shares are to be
issued and sold by the Company and 1,500,000 Initial Shares are to
be sold by the Selling Stockholder, and the purchase by the
Underwriters, acting severally and not jointly, of the respective
number of shares of Common Stock set forth opposite the names of
the Underwriters in Schedule I hereto, and (ii) the
grant of the option described in Section 1(b) hereof to
purchase all or any part of 3,225,000 additional shares of Common
Stock to cover over-allotments (the “ Option Shares
”), if any, from the Selling Stockholder, to the
Underwriters, acting severally and not jointly, on a pro rata basis
to the respective number of shares of Common Stock set forth
opposite the names of each of the Underwriters listed in
Schedule I hereto. The Initial Shares to be purchased by the
Underwriters and all or any part of the Option Shares subject to
the option described in Section 1(b) hereof are hereinafter
called, collectively, the “ Shares .”
The Company and the Selling
Stockholder understand that the Underwriters propose to make a
public offering of the Shares as soon as the Underwriters deem
advisable after this Underwriting Agreement (the “
Agreement ”) has been executed and
delivered.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement on Form S-3 (No. 333-159415),
including a related prospectus, for the registration of the Shares,
which registration statement incorporates by reference documents
which the Company has filed, or will file, under the Securities Act
of 1933, as amended (the “ Securities Act ”),
and the rules and regulations thereunder (the “ Securities
Act Regulations ”). The Company has prepared and filed
such amendments to the registration statement and such amendments
or supplements to the related preliminary prospectus as may have
been required to the date hereof, and will file such additional
amendments or supplements as may hereafter be required. The
registration statement has been declared effective under the
Securities Act by the Commission. The registration statement, as
amended at the time it was declared effective by the Commission
(and, if the Company files a post-effective amendment to such
registration statement which becomes effective prior to the Closing
Time (as defined below), such registration statement as so amended)
and including all information deemed to be a part of the
registration statement pursuant to incorporation by reference, Rule
430B of the Securities Act Regulations or otherwise, is hereinafter
called the “ Registration Statement .” Any
registration statement filed pursuant to Rule 462(b)
of the Securities Act Regulations is hereinafter
called the “ Rule 462(b) Registration Statement
,” and after such filing the term “ Registration
Statement ” shall include the 462(b) Registration
Statement. Each prospectus included in the Registration Statement
before it was declared effective by the Commission under the
Securities Act, any preliminary form of prospectus filed with the
Commission by the Company with the consent of the Underwriters
pursuant to Rule 424(a) of the Securities Act Regulations, and any
preliminary form of Prospectus Supplement (as defined below) filed
with the Commission by the Company pursuant to Rule 424(b) of the
Securities Act Regulations, including all information incorporated
by reference in either such prospectus, is hereinafter called the
“ Preliminary Prospectus .” The term “
Basic Prospectus ” means the final prospectus covering
the Company’s common stock, preferred stock, senior debt
securities and subordinated debt securities, dated June 8,
2009, as first filed with the Commission pursuant to paragraph
(1) or (4) of Rule 424(b) of the Securities Act
Regulations, and any amendments thereof or supplements thereto
including all information incorporated by reference therein. The
term “ Prospectus Supplement ” means the final
prospectus supplement, relating to the Shares, filed by the Company
with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations on or before the second business day after the date
hereof (or such earlier time as may be required under the Act), in
the form furnished by the Company for use by the Underwriters and
by dealers in connection with the offering of the Shares, and any
amendments thereof or supplements thereto including all information
incorporated by reference therein. The term “
Prospectus ” means the Basic Prospectus, as
supplemented by the Prospectus Supplement.
The Commission has not issued any
order preventing or suspending the use of any Preliminary
Prospectus.
The term “ Disclosure
Package ” means (i) the Basic Prospectus and the
Preliminary Prospectus identified in Schedule II hereto, as
most recently amended or supplemented immediately prior to the
Initial Sale Time (as defined herein), together with the
information set forth in Item 3 of Schedule II hereto,
(ii) the Issuer Free Writing Prospectuses (as defined below),
if any, identified in Schedule III hereto and (iii) any
other Free Writing Prospectus (as defined below) or other written
information that the parties hereto shall hereafter expressly agree
to treat as part of the Disclosure Package.
The term “ Issuer Free
Writing Prospectus ” means any issuer free writing
prospectus, as defined in Rule 433 of the Securities Act
Regulations. The term “ Free Writing Prospectus
” means any free writing prospectus, as defined in Rule 405
of the Securities Act Regulations.
The Selling Stockholder has executed
a Power of Attorney (a “ Power of Attorney ”) in
the form attached hereto as Exhibit A , pursuant to which
the Selling Stockholder appointed the person designated therein as
attorney in fact (the “ Attorney ”) with the
authority to execute and deliver this Agreement on behalf of the
Selling Stockholder and to take certain other actions with respect
thereto and hereto.
The Company and the Selling
Stockholder and the Underwriters hereby each agrees as
follows:
(a) Initial Shares . Upon the
basis of the warranties and representations and other terms and
conditions herein set forth, at the purchase price per share of
Common Stock of $4.4175, each of the Company and the Selling
Stockholder, severally and not jointly, agree to sell to the
Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholder,
the number of Initial Shares set forth in Schedule I
opposite such Underwriter’s name, plus any additional number
of Initial Shares which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 9 hereof,
subject in each case, to such adjustments among the Underwriters as
the Representative in its sole discretion shall make to eliminate
any sales or purchases of fractional shares.
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(b) Option Shares . In
addition, upon the basis of the warranties and representations and
other terms and conditions herein set forth, at the purchase price
per share of Common Stock set forth in paragraph (a) above,
the Selling Stockholder hereby grants an option to the
Underwriters, acting severally and not jointly, to purchase from
the Selling Stockholder all or any part of the Option Shares. The
option hereby granted will expire 30 days after the date hereof and
may be exercised in whole or in part from time to time within such
30-day period only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution
of the Initial Shares upon notice by the Representative to the
Selling Stockholder setting forth the number of Option Shares as to
which the several Underwriters are then exercising the option and
the time and date of payment and delivery for such Option Shares.
If the option is exercised as to all or any portion of the Option
Shares, the Selling Stockholder will sell that number of Option
Shares then being purchased and each of the Underwriters, acting
severally and not jointly, will purchase the number of Option
Shares that bear the same proportion to the total number of Option
Shares then being purchased as the number of Initial Shares set
forth in Schedule I opposite the name of such Underwriter
bears to the total number of Initial Shares, plus any additional
number of Initial Shares which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9
hereof, subject to such adjustments among the Underwriters as the
Representative in its sole discretion shall make to eliminate any
sales or purchases of fractional shares.
(c) Directed Shares . It is
understood that up to 300,000 of the Initial Shares (“
Directed Shares ”) initially will be reserved by the
Underwriters for offer and sale to the Company’s employees,
officers and directors (“ Directed Share Participants
”) upon the terms and conditions set forth in both the
Prospectus and the Disclosure Package and in accordance with the
rules and regulations of the Financial Industry Regulatory
Authority, Inc. (“ FINRA ”) (the “
Directed Share Program ”). Under no circumstances will
the Representatives or any Underwriter be liable to the Company or
to any Directed Share Participant for any action taken or omitted
to be taken in good faith in connection with such Directed Share
Program. Any Directed Shares that are not orally confirmed for
purchase within one day of the date hereof will be offered to the
public as part of the public offering contemplated
herein.
(a) Initial Shares . The
Initial Shares to be purchased by each Underwriter hereunder shall
be delivered by or on behalf of the Company and the Selling
Stockholder to the Representative, including, at the option of the
Representative, through the facilities of The Depository Trust
Company (“ DTC ”) for the account of such
Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor by wire transfer of Federal (same-day)
funds to the accounts specified to the Representative by the
Company and the Selling Stockholder, upon at least 48 hours’
prior notice. The Company and the Selling Stockholder will cause
the certificates representing the Initial Shares to be made
available for checking and packaging not later than 1:00 p.m., New
York City time on the business day prior to the Closing Time (as
defined below) at the office of FBR Capital Markets & Co.,
1001 19th Street North, Arlington, Virginia 22209, or at the office
of DTC or its designated custodian, as the case may be (the “
Designated Office ”). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on the
third (fourth, if the determination of the purchase price of the
Initial Shares occurs after 4:30 p.m., New York City time) business
day after the date hereof (unless another time and date shall be
agreed to by the Representative and the Company). The time and date
at which such delivery and payment are actually made is hereinafter
called the “ Closing Time .”
(b) Option Shares . Any
Option Shares to be purchased by each Underwriter hereunder shall
be delivered by or on behalf of the Selling Stockholder to the
Representative, including, at the option of
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the Representative, through the facilities of
DTC for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified to
the Representative by the Selling Stockholder upon at least 48
hours’ prior notice. The Selling Stockholder will cause the
certificates representing the Option Shares to be made available
for checking and packaging at least 24 hours prior to the Option
Closing Time (as defined below) with respect thereto at the
Designated Office. The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on the date specified by
the Representative in the notice given by the Representative to the
Selling Stockholder of the Underwriters’ election to purchase
such Option Shares, which time shall not be later than three full
business days (or earlier, without the consent of the Selling
Stockholder, than two full business days) after the exercise of
such option, nor in any event prior to the Closing Time, or on such
other time and date as the Company and the Representative may agree
upon in writing. The time and date at which such delivery and
payment are actually made is hereinafter called the “
Option Closing Time .”
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3.
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Representations and Warranties of the
Company :
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The Company represents and warrants
to the Underwriters as of the date hereof, as of the Initial Sale
Time (as defined below), as of the Closing Time and as of any
Option Closing Time (if any), and agrees with each Underwriter,
that:
(a) the Company has the duly
authorized capitalization set forth in both the Prospectus and the
Disclosure Package; the Shares to be sold by the Company
(i) have been duly and validly authorized and, when issued,
will be duly and validly issued, fully paid and non-assessable and
(ii) will not have been issued in violation of or subject to
any preemptive right or other similar right of stockholders arising
by operation of law, under the articles of incorporation or bylaws,
each as amended, or other organizational documents (collectively,
the “ Charter Documents ”) of the Company, under
any agreement to which the Company is a party or otherwise; except
as disclosed in or contemplated by both the Prospectus and the
Disclosure Package, there are no outstanding (A) securities or
obligations of the Company convertible into or exchangeable for any
capital stock of the Company, (B) warrants, rights or options
to subscribe for or purchase from the Company any such capital
stock or any such convertible or exchangeable securities or
obligations or (C) obligations of the Company to issue or sell
any shares of capital stock, any such convertible or exchangeable
securities or obligation, or any such warrants, rights or
options;
(b) the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation with
full corporate power and authority to own its respective properties
and to conduct its business as described in each of the
Registration Statement, the Prospectus and the Disclosure Package,
and to execute and deliver this Agreement and to consummate the
transactions contemplated herein;
(c) each of FBR Investment
Management, Inc., FBR Fund Advisers, Inc., FBR Asset Management
Holdings, Inc., FBR Capital Markets Holdings, Inc., FBR Investment
Services, Inc., FBR Capital Markets PT, Inc., FBR Capital
Markets & Co. and Friedman, Billings, Ramsey
International, Ltd. (each, a “ Subsidiary ” and,
collectively, the “ Subsidiaries ”) has been
duly incorporated or organized under the laws of the jurisdiction
in which it was incorporated or organized. Each Subsidiary (other
than Friedman, Billings, Ramsey, International, Ltd. (“
FBRIL ”)) is a corporation or a limited liability
company duly organized and validly existing and in good standing
under the laws of its jurisdiction of incorporation. FBRIL has been
in continuous and unbroken existence since the date of its
incorporation. FBRIL is not in liquidation or subject to an
administration order and no receiver or manager of FBRIL’s
property has been appointed. Each Subsidiary has the requisite
corporate power and authority to own, lease or operate its
properties and to conduct its business as described in the
Prospectus and the Disclosure Package;
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(d) the Company and all of the
Subsidiaries are duly qualified or licensed and are in good
standing in each jurisdiction in which they conduct their
respective businesses or in which they own or lease real property
or otherwise maintain an office and in which such licensing is
necessary, except where the failure, individually or in the
aggregate, to be so qualified or licensed or to be in good standing
would not reasonably be expected to have a material adverse effect
on the assets, business, operations, results of operations,
earnings, stockholders’ equity, prospects, properties or
condition (financial or otherwise) of the Company and the
Subsidiaries taken as a whole (any such effect or change, where the
context so requires, is hereinafter called a “ Material
Adverse Effect ” or “ Material Adverse
Change ”); except as disclosed in both the Prospectus and
the Disclosure Package, no Subsidiary is prohibited or restricted,
directly or indirectly, from paying dividends to the Company, or
from making any other distribution with respect to such
Subsidiary’s capital stock or from repaying to the Company or
any other Subsidiary any amounts which may from time to time become
due under any loans or advances to such Subsidiary from the Company
or such other Subsidiary, or from transferring any such
Subsidiary’s property or assets to the Company or to any
other Subsidiary; other than as disclosed in both the Prospectus
and the Disclosure Package, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership,
joint venture or other association;
(e) neither the Company nor any
Subsidiary has violated, or received written notice of any
violation with respect to, any law, rule, regulation, order, decree
or judgment applicable to it and its business;
(f) none of the Company nor any
Subsidiary is in breach of or in default under (nor has any event
occurred which with notice, lapse of time, or both would constitute
a breach of, or default under), (i) its respective Charter
Documents, or (ii) in the performance or observance of any
obligation, agreement, covenant or condition contained in any
license, indenture, mortgage, deed of trust, loan or credit
agreement or other agreement or instrument to which the Company or
any Subsidiary is a party or by which any of them or their
respective properties is bound, except in the case of this clause
(ii) for such breaches or defaults which would not reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect;
(g) the execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated herein and therein will not (i) conflict with, or
result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both
would constitute a breach of, or default under), (A) any
provision of the Charter Documents of the Company or any
Subsidiary, or (B) any provision of any license, indenture,
mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which the Company or any Subsidiary is a
party or by which any of them or their respective properties may be
bound or affected, or under any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order applicable
to the Company or any Subsidiary, or (C) any federal, state,
local or foreign law, regulation or rule or any decree, judgment,
permit or order applicable to the Company, except in the case of
clauses (B) or (C) for such breaches or defaults which
would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; or (ii) result in the
creation or imposition of any material lien, charge, claim or
encumbrance upon any property or asset of the Company or any
Subsidiary;
(h) this Agreement has been duly
authorized, executed and delivered by the Company and is a legal,
valid and binding agreement of the Company enforceable in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally, and by general equitable
principles, and except to the extent that the indemnification and
contribution provisions of Section 10 hereof may be limited by
federal or state securities laws and public policy considerations
in respect thereof;
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(i) no approval, authorization,
consent or order of or filing with or notice to any federal, state,
local or foreign governmental or regulatory commission, board,
body, authority or agency is required in connection with the
Company’s execution, delivery and performance of this
Agreement, its consummation of the transactions contemplated
herein, and its sale and delivery of the Shares, other than
(i) such as have been obtained, or will have been obtained at
the Closing Time or the relevant Option Closing Time, as the case
may be, under the Securities Act and the Securities Exchange Act of
1934 (the “ Exchange Act ”), (ii) such
approvals as have been obtained in connection with the approval of
the quotation of the Shares on The Nasdaq Global Select Market and
(iii) any necessary qualification under the securities or blue
sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters;
(j) each of the Company and the
Subsidiaries has all necessary licenses, authorizations, consents
and approvals and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and has
obtained all necessary authorizations, consents and approvals from
other persons, required in order to conduct their respective
businesses as described in both the Prospectus and the Disclosure
Package, except to the extent that any failure to have any such
licenses, authorizations, consents or approvals, to make any such
filings or to obtain any such authorizations, consents or approvals
would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; neither the Company nor any of
the Subsidiaries is in violation of, in default under, or has
received any notice regarding a possible violation, default or
revocation of any such license, authorization, consent or approval
or any federal, state, local or foreign law, regulation or rule or
any decree, order or judgment applicable to the Company or any of
the Subsidiaries the effect of which would reasonably be expected
to result in a Material Adverse Change;
(k) based on verbal advice from the
Commission, each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities
Act and no stop order preventing or suspending the use of any Basic
Prospectus, any Preliminary Prospectus, the Prospectus Supplement,
the Prospectus or any Issuer Free Writing Prospectus or suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated or threatened
by the Commission; and the Company has complied to the
Commission’s satisfaction with any request on the part of the
Commission for additional information;
(l) the Registration Statement
complied as of its effective date and complies as of the date
hereof and, as amended or supplemented, at the Initial Sale Time
(as defined below), as of the Closing Time and as of any Option
Closing Time, if any, and at all times during which a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Securities Act and the
Securities Act Regulations; the conditions to the use of Form S-3
in connection with the offering and sale of the Shares as
contemplated hereby have been satisfied; the Registration Statement
meets, and the offering and sale of the Shares as contemplated
hereby complies with, the requirements of Rule 415 under the
Securities Act Regulations (including, without limitation, Rule
415(a)(5) thereunder); the Basic Prospectus complied as of the date
it was filed, and complies as of the date hereof and, as amended or
supplemented, at the Initial Sale Time (as defined below), as of
the Closing Time and as of any Option Closing Time, if any, and at
all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of
Shares, will comply, in all material respects, with the
requirements of the Securities Act and the Securities Act
Regulations; each of
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the Prospectus Supplement and the Prospectus
will comply as of the date it is filed with the Commission, the
date of the Prospectus Supplement, at the Initial Sale Time (as
defined below), as of the Closing Time and as of any Option Closing
Time, if any, and at all times during which a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Securities Act and the
Securities Act Regulations (in the case of the Prospectus,
including, without limitation, Section 10(a) of the Securities
Act);
(m) the Registration Statement, as
of its effective date and as of the date hereof, did not and does
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 not misleading; and the Preliminary
Prospectus does not, and the Prospectus or any amendment or
supplement thereto will not, as of the applicable filing date, the
date hereof and at the Closing Time and on each Option Closing Time
(if any), 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; provided , however , that the Company
makes no warranty or representation with respect to any statement
contained in or omitted from the Registration Statement, the
Preliminary Prospectus or the Prospectus in reliance upon and in
conformity with the information concerning the Underwriters and
furnished in writing by or on behalf of the Underwriters through
the Representative to the Company expressly for use therein (that
information being limited to that described in the last sentence of
the first paragraph of Section 10(d) hereof); provided
further , however , the Company makes no warranty or
representation with respect to any statement contained in or
omitted from the Registration Statement, the Preliminary Prospectus
or the Prospectus in reliance upon and in conformity with the
information concerning the Selling Stockholder and furnished in
writing on behalf of the Selling Stockholder to the Company
expressly for use therein (that information being limited to that
described in Section 10(b) hereof);
(n) as of 7:30 p.m. (Eastern time)
on the date of this Agreement (the “ Initial Sale Time
”), the Disclosure Package did not, and at the time of each
sale of Shares and at the Closing Time and each Option Closing
Time, the Disclosure Package will not, contain any untrue statement
of a material fact or omit 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; as of its
issue date or date of first use and at all subsequent times through
the Initial Sale Time, each Issuer Free Writing Prospectus, if any,
did not, and at the time of each sale of Shares and at the Closing
Time and each Option Closing Time, each such Issuer Free Writing
Prospectus will not, contain any untrue statement of a material
fact or omit 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; provided ,
however , that the Company makes no warranty or
representation with respect to any statement contained in or
omitted from the Disclosure Package in reliance upon and in
conformity with the information concerning the Underwriters and
furnished in writing by or on behalf of the Underwriters through
the Representative to the Company expressly for use therein (that
information being limited to that described in the last sentence of
the first paragraph of Section 10(d) hereof); provided
further , however , that the Company makes no warranty
or representation with respect to any statement contained in or
omitted from the Disclosure Package in reliance upon and in
conformity with the information concerning the Selling Stockholder
and furnished in writing on behalf of the Selling Stockholder to
the Company expressly for use therein (that information being
limited to that described in Section 10(b) hereof);
(o) each Issuer Free Writing
Prospectus, if any, 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 or will conflict with the information
contained in the Registration Statement, including any document
incorporated by reference therein that has not been superseded or
modified;
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(p) the Company is eligible to use
Free Writing Prospectuses in connection with this offering pursuant
to Rules 164 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 Regulations has been, or will be,
filed with the Commission in accordance with the requirements of
the Securities Act and the Securities Act Regulations; and each
Free Writing Prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) under the Securities Act
Regulations or that was prepared by or on behalf of or used by the
Company complies or will comply in all material respects with the
requirements of the Securities Act and the Securities Act
Regulations;
(q) except for the Issuer Free
Writing Prospectuses, if any, identified in Schedule III
hereto, and any electronic road show relating to the public
offering of shares contemplated herein, the Company has not
prepared, used or referred to, and will not, without the prior
consent of the Representative, prepare, use or refer to, any Free
Writing Prospectus;
(r) the Preliminary Prospectus, the
Prospectus and any Issuer Free Writing Prospectuses (to the extent
any such Issuer Free Writing Prospectus was required to be filed
with the Commission) delivered to the Underwriters for use in
connection with the public offering of the Shares contemplated
herein have been and will be identical to the versions of such
documents transmitted to the Commission for filing via the
Electronic Data Gathering Analysis and Retrieval System (“
EDGAR ”), except to the extent permitted by Regulation
S-T;
(s) the Company filed the
Registration Statement with the Commission before using any Issuer
Free Writing Prospectus;
(t) other than as set forth in both
the Prospectus (exclusive of any amendment or supplement thereto
after the date hereof) and the Disclosure Package, there are no
material actions, suits, proceedings, inquiries or investigations
pending or, to the knowledge of the Company, threatened against the
Company or any of the Subsidiaries, or any of their respective
officers or directors, or to which the properties of any such
entity are subject, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency;
(u) the financial statements,
including the notes thereto, included in each of the Registration
Statement, the Prospectus and the Disclosure Package present fairly
the consolidated financial position of the entities to which such
financial statements relate (the “ Covered Entities
”) as of the dates indicated and the consolidated results of
operations and changes in financial position and cash flows of the
Covered Entities for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles as applied in the United States and on a
consistent basis during the periods involved and in accordance with
Regulation S-X promulgated by the Commission; the financial
statement schedules included in the Registration Statement and the
amounts in both the Prospectus and the Disclosure Package under the
captions “Summary—Summary Historical Consolidated
Financial and Other Data” fairly present the information
shown therein and have been compiled on a basis consistent with the
financial statements included in each of the Registration
Statement, the Prospectus and the Disclosure Package; no other
financial statements or supporting schedules are required to be
included in the Registration Statement, the Prospectus or the
Disclosure Package;
(v) PricewaterhouseCoopers LLP,
whose reports on the consolidated financial statements of the
Company and the Subsidiaries are filed with the Commission as part
of each of the Registration Statement, the Prospectus and the
Disclosure Package, are, and were during the periods covered by
their reports, independent public accountants as required by the
Securities Act and the Securities Act Regulations and are
registered with the Public Company Accounting Oversight
Board;
- 8 -
(w) subsequent to the respective
dates as to which information is given in the Registration
Statement, the Prospectus and the Disclosure Package, and except as
may be otherwise stated in such documents, there has not been
(i) any Material Adverse Change or any development that would
reasonably be expected to result in a Material Adverse Change,
whether or not arising in the ordinary course of business,
(ii) any transaction that is material to the Company and the
Subsidiaries taken as a whole, agreed to or entered into by the
Company or any of the Subsidiaries, (iii) any obligation,
contingent or otherwise, directly or indirectly incurred by the
Company or any Subsidiary that is material to the Company and
Subsidiaries taken as a whole, (iv) any dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock or any purchase by the Company or
the Subsidiaries of any of its outstanding capital stock,
(v) any change of the capital stock of the Company or any
Subsidiary, (vi) except in the ordinary course of business,
any change in the indebtedness of the Company or any Subsidiary or
(vii) any loss or damage (whether or not insured) to the
property of the Company or any subsidiary which has been sustained
or will have been sustained which has a Material Adverse
Effect;
(x) the Shares conform in all
material respects to the description thereof contained in the
Registration Statement, the Prospectus and the Disclosure
Package;
(y) there are no persons with
registration or other similar rights to have any securities
registered by the Company under the Securities Act other than as
disclosed in the Prospectus and the Disclosure Package or other
than those that have been waived;
(z) the Shares have been included
for quotation on The Nasdaq Global Select Market; the Company has
taken all necessary actions to ensure that, upon and at all times
after The Nasdaq Global Select Market shall have included the
Shares, it will be in compliance with all applicable corporate
governance requirements set forth in the Nasdaq Marketplace Rules
that are then in effect and is taking such steps as are necessary
to ensure that it will be in compliance with other applicable
corporate governance requirements set forth in the Nasdaq
Marketplace Rules standards not currently in effect upon the
effectiveness of such requirements;
(aa) none of the Company, any
Subsidiary, nor, to the knowledge of the Company, any of their
respective directors, officers, representatives or affiliates have
taken, directly or indirectly, any action intended, or which might
reasonably be expected, to cause or result, under the Securities
Act, the Exchange Act or otherwise, in, or which has constituted,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(bb) other than as disclosed in the
Prospectus and the Disclosure Package, neither the Company, any of
its Subsidiaries, nor any of its affiliates (i) is required to
register as a “broker” or “dealer” in
accordance with the provisions of the Exchange Act or the rules and
regulations thereunder, or (ii) directly, or indirectly
through one or more intermediaries, controls or has any other
association with (within the meaning of Article 1 of the Bylaws of
FINRA) any member firm of FINRA;
(cc) each Subsidiary that acts as a
(A) “broker” or “dealer” in securities
(as defined in the Securities Act), (B) an investment adviser
(as defined in the Investment Advisers Act of 1940 (the “
Investment Advisors Act ”)), (C) a collective
investment fund of any type, (D) a “commodity pool
operator,” “commodity trading advisor” or
“futures commission merchant” (each as defined in the
Commodity Exchange Act), bank or similar entity or insurance
company (all such entities in subclauses (i)(A) through
(D) herein referred to as a “ Financial
Intermediary ” and collectively, the “ Financial
Intermediaries ”) has in place, and has had in place for
the past three years, an appropriate system of legal, regulatory,
recordkeeping and financial controls (including for this purpose
controls relating to the rules of any self-regulatory organization
and controls relating to anti-money laundering, privacy and Office
of Foreign Assets Control of the United States Treasury Department
(“ OFAC ”)), and such controls have not
discovered any material violation other than as has been disclosed
in writing;
- 9 -
(dd) any certificate signed by any
officer of the Company or any Subsidiary delivered to the
Representative or to counsel for the Underwriters pursuant to or in
connection with this Agreement shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters
covered thereby;
(ee) the form of certificate used to
evidence the Common Stock complies in all material respects with
all applicable statutory requirements and with any applicable
requirements of the organizational documents of the
Company;
(ff) the Company and each Subsidiary
has good and marketable title in fee simple to all real property,
if any, and good title to all personal property, if any, owned by
it, in each case free and clear of all liens, security interests,
pledges, charges, encumbrances, mortgages and defects, except such
as are disclosed in the Prospectus and the Disclosure Package or as
would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; any real property or personal
property held under lease by the Company or any of the Subsidiaries
is held under a lease that is valid, existing and enforceable
against the Company or such Subsidiary, with such exceptions as are
disclosed in the Prospectus or the Disclosure Package or as would
not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect;
(gg) the descriptions in each of the
Registration Statement, the Prospectus and the Disclosure Package
of the legal or governmental proceedings, contracts, leases and
other legal documents therein described present fairly the
information required to be shown, and there are no legal or
governmental proceedings, contracts, leases, or other documents of
a character required to be described in the Registration Statement,
the Prospectus or the Disclosure Package or to be filed as exhibits
to the Registration Statement or incorporated by reference therein
which are not described or filed or incorporated by reference
therein as required; all agreements between the Company or any of
the Subsidiaries and third parties expressly referenced in both the
Prospectus and the Disclosure Package are legal, valid and binding
obligations of the Company or one or more of the Subsidiaries,
enforceable in accordance with their respective terms, except to
the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general equitable
principles;
(hh) the Company and each Subsidiary
owns or possesses such licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights, software and
design licenses, trade secrets, manufacturing processes, other
intangible property rights and know-how (collectively “
Intangibles ”), as are necessary to entitle the
Company and the Subsidiaries to conduct in all material respects
the Company’s and the Subsidiaries’ business described
in the Prospectus and the Disclosure Package, and the Company and
the Subsidiaries have not received written notice of any
infringement of or conflict with (and neither the Company nor any
Subsidiary knows of any such infringement of or conflict with)
asserted rights of others with respect to any Intangibles which
would reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect;
(ii) The Company has established and
maintains disclosure controls and procedures sufficient to enable
the Company to make required filings under the Exchange Act; such
disclosure controls and procedures are designed to ensure that
material information relating to the Company and each of its
Subsidiaries is accumulated and communicated to management of the
Company, including its principal executive officers and principal
financial officers, as appropriate, and to allow timely decisions
regarding required disclosure to be made by the Company; such
disclosure controls and procedures are effective in
- 10 -
all material respects to perform the functions
for which they were established; the Company is not aware of
(i) any significant deficiency or material weakness in the
design or operation of its internal controls over financial
reporting which are reasonably likely to adversely affect the
Company’s ability to record, process, summarize and report
financial information to management and the board of directors of
the Company, or (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role
in the Company’s internal control over financial
reporting;
(jj) the Company and each of the
Subsidiaries maintain a 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 as applied in the United States 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;
(kk) each of the Company and the
Subsidiaries has filed on a timely basis (including in accordance
with any applicable extensions) all necessary federal, state, local
and foreign income and franchise tax returns required to be filed
through the date hereof or have properly requested extensions
thereof, and have paid all taxes shown as due thereon, including
without limitation, all sales and use taxes and all taxes which the
Company and each Subsidiary is obligated to withhold from amounts
owing to employees, creditors and third parties; no tax deficiency
has been asserted against any such entity, nor does any such entity
know of any tax deficiency which is likely to be asserted against
any such entity which, if determined adversely to any such entity,
would reasonably be expected to have a Material Adverse Effect; all
such tax liabilities are adequately provided for on the respective
books of such entities; there is no tax lien, whether imposed by
any federal, state, foreign or other taxing authority, outstanding
against the assets, properties or business of the Company or any
Subsidiary, as the case may be;
(ll) each of the Company and the
Subsidiaries maintains insurance (issued by insurers of recognized
financial responsibility) of the types and in the amounts and with
coverage generally deemed adequate for their respective businesses
and consistent with insurance coverage maintained by similar
companies in similar businesses, including, but not limited to,
insurance covering real and personal property owned or leased by
the Company and the Subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and
effect;
(mm) neither the Company nor any
Subsidiary is in violation, or has received notice of any violation
with respect to, any applicable environmental, safety or similar
law applicable to the business of the Company or any of the
Subsidiaries; the Company and the Subsidiaries have received all
permits, licenses or other approvals required of them under
applicable federal and state occupational safety and health and
environmental laws and regulations to conduct their respective
businesses, and the Company and the Subsidiaries are in compliance
with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure
to receive required permits, licenses or other approvals or failure
to comply with the terms and conditions of such permits, licenses
or approvals which would not reasonably be expected, individually
or in the aggregate, to result in a Material Adverse
Change;
(nn) neither the Company nor any
Subsidiary is in violation of or has received notice of any
violation with respect to any federal or state law relating to
discrimination in the hiring, promotion or pay of employees, nor
any applicable federal or state wages and hours law, nor any state
law precluding the denial of credit due to the neighborhood in
which a property is situated, the violation of any of which would
reasonably be expected to have a Material Adverse
Effect;
- 11 -
(oo) each of the Company and the
Subsidiaries are in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ ERISA
”); no “reportable event” (as defined in ERISA)
has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company or any of the Subsidiaries
would have any liability; the Company and each of the Subsidiaries
have not incurred and do not expect to incur liability under
(i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “pension plan” or
(ii) Section 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (“ Code ”); and each
“pension plan” for which the Company and each of its
Subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such
qualification;
(pp) neither the Company nor any
Subsidiary nor, to the Company’s knowledge, any officer,
director, agent or employee purporting to act on behalf of the
Company or any Subsidiary, has at any time, directly or indirectly,
(i) made any contributions to any candidate for political
office, or failed to disclose fully any such contributions, in
violation of law, (ii) made any payment to any state, federal
or foreign governmental officer or official, or other person
charged with similar public or quasi-public duties, other than
payments required or allowed by applicable law, (iii) engaged
in any transactions, maintained any bank account or used any
corporate funds except for transactions, bank accounts and funds
which have been and are reflected in the normally maintained books
and records of the Company, or (iv) made any other unlawful
payment;
(qq) except as otherwise disclosed
in both the Prospectus and the Disclosure Package, there are no
outstanding loans or advances or guarantees of indebtedness by the
Company or any Subsidiary to or for the benefit of any of the
officers, directors or affiliates of the Company or any Subsidiary,
as the case may be, or any of the members of the families of any of
them;
(rr) neither the Company nor, to the
Company’s knowledge, any employee or agent of the Company,
has made any payment of funds of the Company or received or
retained any funds in violation of any law, rule or regulation,
including without limitation the “know your customer”
and anti-money laundering laws of any jurisdiction;
(ss) all securities issued by the
Company, any Subsidiary or any trusts established by the Company or
any Subsidiary, have been or will be issued and sold in compliance
with (i) all applicable federal and state securities laws,
(ii) the laws of the applicable jurisdiction of incorporation
of the issuing entity and, (iii) to the extent applicable to
the issuing entity, the requirements of the Nasdaq Global Select
Market;
(tt) except as described in both the
Prospectus and the Disclosure Package or as would not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect, (i) neither the Company nor any Subsidiary is
in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing
materials
- 12 -
or mold (collectively, “ Hazardous
Materials ”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, “
Environmental Laws ”), (ii) each of the Company
and the Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending
or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the
Company or any Subsidiary, and (iv) to the knowledge of the
Company, there are no events or circumstances that would reasonably
be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company or
the Subsidiaries relating to Hazardous Materials or any
Environmental Laws;
(uu) in connection with this
offering, the Company has not offered and will not offer its Common
Stock or any other securities convertible into or exchangeable or
exercisable for Common Stock in a manner in violation of the
Securities Act; and the Company has not distributed and will not
distribute any offering material in connection with the offer and
sale of the Shares except for the Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus or the Registration
Statement;
(vv) the Company has not incurred
any liability for any finder’s fees or similar payments in
connection with the transactions herein contemplated;
(ww) no relationship, direct or
indirect, exists between or among the Company or any of the
Subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of the
Subsidiaries on the other hand, which is required by the Securities
Act and the Securities Act Regulations to be described in the
Registration Statement, the Prospectus or the Disclosure Package,
which is not so described;
(xx) the Company is not and, after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be an
“investment company”, as such term is defined in the
Investment Company Act;
(yy) there are no existing or, to
the knowledge of the Company, threatened labor disputes with the
employees of the Company or any of the Subsidiaries which would
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect;
(zz) neither the Company, the
Subsidiaries, nor to the knowledge of the Company, any of the
officers and directors of the Company and the Subsidiaries, in
their capacities as such, at the Closing Time and any Option
Closing Time will be, in material violation of the provisions of
the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated thereunder;
(aaa) no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency, other than those obtained, is required in
connection with the offering of the Directed Shares in any
jurisdiction where the Directed Shares are being
offered;
(bbb) the Company (i) complies
in all material respects with the Privacy Statements (as defined
below) as applicable to any given set of personal information
collected by the Company from Individuals (as defined below),
(ii) complies in all material respects with all applicable
federal, state, local and foreign laws and regulations regarding
the collection, retention, use, transfer or disclosure of personal
information and (iii) takes reasonable measures to protect and
maintain the confidential nature of the personal information
provided to the Company by Individuals in accordance with the terms
of the applicable Privacy Statements; to the Company’s
knowledge, no claims or controversies have arisen
- 13 -
regarding the Privacy Statements or the
implementation thereof. As used herein, “ Privacy
Statements ” means, collectively, any and all of the
Company’s privacy statements and policies published on
Company websites or products or otherwise made available by the
Company regarding the collection, retention, use and distribution
of the personal information of individuals, including, without
limitation, from visitors or users of any Company websites or
products (“ Individuals ”);
(ccc) neither the Company nor any
Subsidiary or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of such entities is aware of
or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the
“ FCPA ”), including, without limitation, making
use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such
term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in
contravention of the FCPA, and the Company and the Subsidiaries
and, to the knowledge of the Company, their affiliates and
directors, officers, agents and employees have conducted their
businesses in compliance with the FCPA;
(ddd) neither the Company nor any
Subsidiary, nor, to the Company’s knowledge, any of its
affiliates or any director, officer, agent or employee of, or other
person associated with or acting on behalf of, the Company, has
violated the Bank Secrecy Act of 1970, as amended, the Uniting and
Strengthening of America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001 or
the rules and regulations promulgated under any such law or any
successor law;
(eee) the operations of the Company
and its Subsidiaries and, to the Company’s knowledge, their
affiliates 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 Control Act of 1986, as amended, any
other 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 ”), except for any such non-compliance as would not
reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Change, 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 it Subsidiaries, or,
to the Company’s knowledge, any of its affiliates, with
respect to the Money Laundering Laws is pending or, to the
Company’s knowledge, threatened; and
(fff) neither the Company nor any of
its Subsidiaries, nor, to the Company’s knowledge, any of its
affiliates or any director, officer, agent or employee of, or other
person associated with or acting on behalf of, the Company, is
currently subject to any United States sanctions administered by
OFAC; and the Company will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any Subsidiary, partner or joint
venturer or other person or entity, for the purpose of financing
the activities of any person currently subject to any United States
sanctions administered by OFAC.
- 14 -
|
4.
|
Representations and Warranties of the Selling
Stockholder:
|
The Selling Stockholder represents
and warrants to the Underwriters as of the date hereof, as of
Initial Sale Time, as of the Closing Time and as of any Option
Closing Time (if any), and agrees with each Underwriter,
that:
(a) the Selling Stockholder has been
duly formed and is validly existing as a limited liability company
under the laws of the Commonwealth of Virginia with full limited
liability company power and authority to own its properties and to
conduct its business as described in each of the Registration
Statement, the Prospectus and the Disclosure Package, to execute
and deliver this Agreement and to consummate the transactions
contemplated herein;
(b) the execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated herein and therein will not (i) conflict with, or
result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both
would constitute a breach of, or default under), (A) any
provision of the Charter Documents of the Selling Stockholder, or
(B) any provision of any license, indenture, mortgage, deed of
trust, loan or credit agreement or other agreement or instrument to
which the Selling Stockholder is a party or by which it or its
respective properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Selling Stockholder, or
(C) any federal, state, local or foreign law, regulation or
rule or any decree, judgment, or permit applicable to the Selling
Stockholder, except in the case of clauses (A) or (B) for
such breaches or defaults which would not reasonably be expected,
individually or in the aggregate, to have a material adverse effect
on the assets, business, operations, results of operations,
earnings, stockholders’ equity, prospects, properties or
condition (financial or otherwise) of the Selling Stockholder; or
(ii) result in the creation or imposition of any material
lien, charge, claim or encumbrance upon any property or asset of
the Selling Stockholder;
(c) this Agreement has been duly
authorized, executed and delivered by the Selling Stockholder and
is a legal, valid and binding agreement of the Selling Stockholder
enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally, and by general
equitable principles, and except to the extent that the
indemnification and contribution provisions of Section 10
hereof may be limited by federal or state securities laws and
public policy considerations in respect thereof;
(d) no approval, authorization,
consent or order of or filing with or notice to any federal, state,
local or foreign governmental or regulatory commission, board,
body, authority or agency is required in connection with the
Selling Stockholder’s execution, delivery and performance of
this Agreement, its consummation of the transactions contemplated
herein, and its sale and delivery of the Shares, other than
(i) such as have been obtained, or will have been obtained at
the Closing Time or the relevant Option Closing Time, as the case
may be, under the Securities Act and the Exchange Act,
(ii) such approvals as have been obtained in connection with
the approval of the quotation of the Shares on the Nasdaq Global
Select Market and (iii) any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which
the Shares are being offered by the Underwriters;
(e) Neither the Selling Stockholder
nor any of its subsidiaries or affiliates have taken, directly or
indirectly, any action intended, or which might reasonably be
expected, to cause or result, under the Securities Act, the
Exchange Act or otherwise, in, or which has constituted,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(f) the Registration Statement, as
of its effective date and as of the date hereof, did not and does
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated
- 15 -
therein or necessary to make the statements
therein not misleading; only insofar as any such untrue statement
of a material fact or omission of a material fact is contained in
and is in conformity with information furnished in writing by the
Selling Stockholder to the Company expressly for use in such
Registration Statement;
(g) the Selling Stockholder now has,
and at the Closing Time or the applicable Option Closing Time will
have, (i) good and marketable title to the Shares to be sold
by the Selling Stockholder hereunder, free and clear of all liens,
encumbrances and claims whatsoever (including any rights of first
refusal and similar rights), and (ii) full legal right and
power, and all authorizations and approvals required by law, to
sell, transfer and deliver such Shares to the Underwriters
hereunder and to make the representations, warranties and
agreements made by the Selling Stockholder herein. Upon the
delivery of and payment for such Shares hereunder, the Selling
Stockholder will deliver good and marketable title thereto, free
and clear of any pledge, lien, encumbrance, security interest or
other claim;
(h) at the Closing Time or the
applicable Option Closing Time, all stock transfer or other taxes
(other than income taxes) which are required to be paid in
connection with the sale and transfer of the Shares to be sold by
the Selling Stockholder to the Underwriters hereunder will have
been fully paid or provided for by the Selling Stockholder and all
laws imposing such taxes will have been fully complied
with;
(i) the Selling Stockholder is not
prompted to sell Shares by any information concerning the Company
which is not set forth in the Registration Statement, the
Prospectus or the Disclosure Package;
(j) the Selling Stockholder has not
relied upon the Representative or legal counsel for the
Underwriters for any legal, tax or accounting advice in connection
with the offering and sale of the Shares;
(k) the Selling Stockholder does not
have, or has waived prior to the date hereof, any preemptive right,
co-sale right or right of first refusal or other similar right to
purchase any of the Shares that are to be sold by the Company to
the Underwriters pursuant to this Agreement; and the Selling
Stockholder does not own any warrants, options or similar rights to
acquire, and does not have any right or arrangement to acquire, any
capital stock, right, warrants, options or other securities from
the Company, other than those described in the Registration
Statement and the Prospectus; and
(l) any certificate signed by the
Selling Stockholder delivered to the Representative or to counsel
to the Underwriters pursuant to or in connection with this
Agreement shall be deemed a representation and warranty by the
Selling Stockholder as to the matters covered thereby.
|
5.
|
Certain
Covenants of the Company and the Selling Stockholder
:
|
The Company (with respect to the
covenants set forth in Sections 5(a) through (y) only) and the
Selling Stockholder (with respect to the covenants set forth in
Sections 5(r), (s), (x) and (z) through (cc) only) hereby
agree with each Underwriter:
(a) to furnish such information as
may be required and otherwise to cooperate in qualifying the Shares
for offering and sale under the securities or blue sky laws of such
jurisdictions (both domestic and foreign) as the Representative may
designate and to maintain such qualifications in effect as long as
requested by the Representative for the distribution of the Shares,
provided, however, that the Company shall not be required to
qualify as a foreign corporation or to consent to the service of
process under the laws of any such jurisdiction (except service of
process with respect to the offering and sale of the
Shares);
- 16 -
(b) if, at the time this Agreement
is executed and delivered, it is necessary for a post-effective
amendment to the Registration Statement to be declared effective
before the offering of the Shares may commence, the Company will
endeavor to cause such post-effective amendment to become effective
as soon as possible and will advise the Representative promptly
and, if requested by the Representative, will confirm such advice
in writing, when such post-effective amendment has become
effective;
(c) to prepare the Prospectus in a
form approved by the Underwriters and file such Prospectus with the
Commission pursuant to Rule 424(b) under the Securities Act not
later than 10:00 a.m., New York City time, on the day following the
execution and delivery of this Agreement or on such other day as
the parties may mutually agree and to furnish promptly (and with
respect to the initial delivery of such Prospectus, not later than
10:00 a.m., New York City time, on the day following the execution
and delivery of this Agreement or on such other day as the parties
may mutually agree) to the Underwriters copies of the Prospectus
(or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) in such quantities
and at such locations as the Underwriters m
