Exhibit 1.1
EXECUTION VERSION
ICONIX BRAND GROUP, INC.
(a Delaware corporation)
10,000,000 Shares of Common
Stock
UNDERWRITING
AGREEMENT
Dated: June 3, 2009
ICONIX BRAND GROUP, INC.
(a Delaware corporation)
10,000,000 Shares of Common
Stock
(Par Value $0.001 Per
Share)
UNDERWRITING
AGREEMENT
June 3, 2009
BARCLAYS CAPITAL INC.
LAZARD CAPITAL MARKETS LLC
as Representatives of the several
Underwriters
c/o Barclays Capital Inc.
745 Seventh Avenue New York,
New York 10019
Ladies and Gentlemen:
Iconix Brand Group, Inc., a Delaware
corporation (the “Company”), and the persons listed in
Schedule B hereto (the “Selling Shareholders”), confirm
their respective agreements with Barclays Capital Inc.
(“Barclays”) and Lazard Capital Markets LLC
(“LCM”) and each of the other Underwriters named in
Schedule A hereto (collectively, the “Underwriters,”
which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Barclays
and LCM are acting as representatives (in such capacity, the
“Representatives”), with respect to (i) the sale
by the Company and the Selling Shareholders, acting severally and
not jointly, of an aggregate of 10,000,000 shares (the
“Initial Securities”) of the common stock, par value
$0.001 per share, of the Company (“Common Stock”), of
which 800,000 shares will be sold by the Selling Shareholders in
the respective amounts set forth opposite their names in Schedule B
hereto and 9,200,000 shares will be sold by the Company, and the
purchase by the Underwriters, acting severally and not jointly, of
the Initial Securities, in the respective amounts set forth
opposite their names in Schedule A, and (ii) the grant to the
Underwriters, severally and not jointly, by the Company of the
option described in Section 2(b) hereof to purchase all or any
part of 1,500,000 additional shares of Common Stock (the
“Option Securities”) from the Company to cover
overallotments, if any. The Initial Securities and the Option
Securities are hereinafter called, collectively, the
“Securities”.
The Company and the Selling
Shareholders understand that the Underwriters propose to make a
public offering of the Securities as soon as the Representatives
deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the
Securities and Exchange Commission (the “Commission”)
an automatic registration statement on Form S-3 (No. 333-159640)
(the base prospectus filed as part of such registration statement,
in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement, is herein
called the
“Base Prospectus”; any preliminary
prospectus (including any preliminary prospectus supplement)
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the 1933 Act is herein called a
“preliminary prospectus”), including the related
preliminary prospectus or prospectuses, covering the registration
of the Securities under the Securities Act of 1933, as amended (the
“1933 Act”). Promptly after execution and delivery of
this Agreement, the Company will prepare and file a prospectus in
accordance with the provisions of Rule 430B (“Rule
430B”) of the rules and regulations of the Commission under
the 1933 Act (the “1933 Act Regulations”) and paragraph
(b) of Rule 424 (“Rule 424(b)”) of the 1933 Act
Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration
statement at the time it became effective pursuant to Rule 430B is
referred to as “Rule 430B Information.” Such
registration statement, including the amendments thereto, the Base
Prospectus, the exhibits and any schedules thereto, the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act at the time it became effective, and
including the Rule 430B Information, is herein called the
“Registration Statement.” The final prospectus in the
form first furnished to the Underwriters for use in connection with
the offering of the Securities including the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act is herein called the “Prospectus.” For
purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system
(“EDGAR”).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in the Registration Statement, any preliminary prospectus
or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934 (the “1934 Act”) which
is incorporated by reference in the Registration Statement, any
preliminary prospectus or the Prospectus, as the case may
be.
SECTION 1. Representations and
Warranties .
(a) Representations and
Warranties by the Company . The Company represents and warrants
to each Underwriter as of the date hereof, the Applicable Time
referred to in Section 1(a)(i) hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and
agrees with each Underwriter, as follows:
(i) Compliance with Registration
Requirements . The Company meets the requirements for use of
Form S-3 under the 1933 Act. Each of the Registration Statement and
any post-effective amendment thereto has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been
2
instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional
information has been complied with.
The Company has been since the time
of the initial filing of the Registration Statement and continues
to be a “well-known seasoned issuer” (as defined in
Rule 405) eligible to use Form S-3 for the offering of the
Securities, including not having been an “ineligible
issuer” (as defined in Rule 405) at any such time or date.
The Registration Statement is an “automatic shelf
registration statement” (as defined in Rule 405) and was
filed not earlier than the date that is three years prior to the
Closing Time or any applicable Delivery Date.
At the respective times the
Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did
not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither
the Prospectus nor any amendments or supplements thereto (including
any prospectus wrapper), at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
As of the Applicable Time (as
defined below), neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the
Applicable Time and the Statutory Prospectus (as defined below) as
of the Applicable Time, and the information included on Schedule F
hereto, all considered together (collectively, the “General
Disclosure Package”), nor (y) any individual Issuer
Limited Use Free Writing Prospectus, when considered together with
the General Disclosure Package, included any untrue statement of a
material fact or omitted 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 used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means
5:30 pm (Eastern time) on June 3, 2009 or such other time as
agreed by the Company and Barclays and LCM.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the Commission by the
Company, (ii) is a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i)
whether or not required to be filed with the Commission or
(iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the
offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not
required to be filed, in the form required to be retained in the
Company’s records pursuant to Rule 433(g).
3
“Issuer General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors
(other than a Bona Fide Electronic Road Show (as defined below)),
as evidenced by its being specified in Schedule E
hereto.
“Issuer Limited Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing
Prospectus.
“Statutory Prospectus”
as of any time means the prospectus (including any prospectus
supplement thereto) relating to the Securities that is included in
the Registration Statement immediately prior to that time,
including any document incorporated by reference
therein.
The Company has made available a
“bona fide electronic road show,” as defined in Rule
433, in compliance with Rule 433(d) (8)(ii) (the “Bona
Fide Electronic Road Show”) such that no filing of any
“road show” (as defined in Rule 433(h)) is required in
connection with the offering of the Securities.
Each Issuer Free Writing Prospectus,
as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Securities or until
any earlier date that the issuer notified or notifies Barclays and
LCM as described in Section 3(e), did not, does not and will
not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by
reference therein, and any preliminary or other prospectus deemed
to be a part thereof that has not been superseded or
modified.
The representations and warranties
in this subsection shall not apply to statements in or omissions
from the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through Barclays and LCM expressly for use therein.
Each preliminary prospectus
(including the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto)
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(ii) Incorporated Documents .
The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the
time they were filed (or, if they were amended, at the time such
amendments were filed) or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934 (the
“1934 Act”), and the rules and regulations of the
Commission under the 1934 Act (the “1934 Act
Regulations”), and, when read together with the other
information in the Prospectus, (a) at the time the
Registration Statement became effective, (b) at the Applicable
Time and
4
(c) at the Closing Time, did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iii) Independent Accountants
. The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) Financial Statements .
The financial statements included in the Registration Statement,
the General Disclosure Package and the Prospectus, together with
the related schedules and notes, present fairly in all material
respects the financial position of the Company, its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the
periods involved, except as otherwise set forth in the financial
statements. The supporting schedules included in the Registration
Statement, if any, present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data and the summary financial information included in the
Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements included in the Registration
Statement.
(v) No Material Adverse Change in
Business . Since the respective dates as of which information
is given in the Registration Statement, the General Disclosure
Package or the Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse
Effect”), (B)there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and
(C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the
Company . The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect.
5
(vii) Good Standing of
Subsidiaries . Each “significant subsidiary” of the
Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a “Subsidiary” and, collectively, the
“Subsidiaries”) has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
such Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder
of such Subsidiary.
(viii) Capitalization . The
authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus in the column entitled
“Actual” under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to this
Agreement, described in the Prospectus, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus
or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The shares of issued and
outstanding capital stock, including the Securities to be purchased
by the Underwriters from the Selling Shareholders, have been duly
authorized and are validly issued, fully paid and non-assessable,
other than Securities which will be sold by the Selling
Shareholders upon exercise of stock options in which case such
Securities will be validly issued, fully paid and non-assessable at
the Closing Time; none of the outstanding shares of capital stock,
including the Securities to be purchased by the Underwriters from
the Selling Shareholders, was issued by the Company in violation of
the preemptive or other similar rights granted by the Company to
any securityholder of the Company.
(ix) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(x) Authorization and Description
of Securities . The Securities to be purchased by the
Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable; the
Common Stock conforms to all statements relating thereto contained
in the Prospectus and such description conforms to the rights set
forth in the instruments defining the same; no holder of the
Securities will be subject to personal liability by reason of being
such a holder; and the issuance of the Securities is not subject to
the preemptive or other similar rights of any securityholder of the
Company.
6
(xi) Absence of Defaults and
Conflicts . Neither the Company nor any of its subsidiaries is
in (i) violation of its charter or by-laws, (ii) in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or
any subsidiary is subject (collectively, “Agreements and
Instruments”) or (iii) in violation of any applicable
law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or
any of their assets, properties or operations except in the cases
of clauses (ii) and (iii) for such defaults and
violations that would not result in a Material Adverse Effect; and
the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption
“Use of Proceeds”) and compliance by the Company with
its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as
defined below) (other than certain payments described in the
Prospectus under “Use of Proceeds”), or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to,
the Agreements and Instruments (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As
used herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary.
(xii) Absence of Labor
Dispute . No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any
subsidiary’s principal suppliers, manufacturers, customers or
contractors, which, in either case, would result in a Material
Adverse Effect.
(xiii) Absence of Proceedings
. There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which could
reasonably be expected to result in a Material Adverse Effect, or
which might materially and adversely affect the properties or
assets thereof or the consummation of the transactions
7
contemplated in this Agreement or
the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which
the Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not result in a
Material Adverse Effect.
(xiv) Accuracy of Exhibits .
There are no contracts or documents which are required to be
described in the Registration Statement or the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(xv) Possession of Intellectual
Property . The Company and its Subsidiaries own, possess,
license, or can acquire on reasonable terms all necessary or
appropriate rights in, all trademarks, servicemarks, trade names,
patents, copyrights and any registrations and applications for each
of the foregoing, domain names, trade secrets, know-how (including
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), inventions, technology and
other similar intellectual property necessary to conduct its
business as now conducted (collectively, “Intellectual
Property Rights”). The Company is not a party to or bound by
any licenses or agreements with respect to the Intellectual
Property Rights of any other person or entity that are required to
be set forth in the Registration Statement and are not described
therein accurately in all material respects. Neither the Company
nor any of its Subsidiaries has received any notice of and is not
in breach of any of its material obligations under any licenses or
agreements to which it is a party or by which it is bound with
respect to any Intellectual Property Rights and, to the
Company’s knowledge, no other party to such licenses or
agreements is in material breach thereof. None of the technology
employed by the Company has been obtained or is being used by the
Company in violation of any contractual obligation binding on the
Company or, to the Company’s knowledge, any of its officers,
directors or employees. Except as set forth in the Registration
Statement and as would not, individually or in the aggregate result
in a Material Adverse Effect, (i) to the Company’s
knowledge, there is no infringement by any third party of any
Intellectual Property Rights owned by or exclusively licensed to
the Company or any of its Subsidiaries; (ii) there is no
pending or, to the Company’s knowledge, threatened (in
writing) action, suit, proceeding or claim by others against the
Company or any of Subsidiaries for any claim of infringement or
misappropriation by the Company or any of its Subsidiaries or
conflict with asserted Intellectual Property Rights of such others
or challenging the Company’s or such Subsidiary’s
rights in or to any Intellectual Property Rights owned by or
exclusively licensed to the Company, and the Company is unaware of
any existing facts which would form a reasonable basis for any such
claims; and (iii) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others against the Company or any of Subsidiaries
challenging the validity or scope of any Intellectual Property
Rights owned by or exclusively licensed to the Company, and the
Company is unaware of any existing facts which would form a
reasonable basis for any such claim; to the Company’s
knowledge, such Intellectual Property Rights owned by, or
exclusively licensed to, the Company are valid and
enforceable.
8
(xvi) Absence of Further
Requirements . No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already
obtained or as may be required under the 1933 Act of the 1933 Act
Regulations or state securities laws.
(xvii) Absence of
Manipulation . Neither the Company, nor any affiliate of the
Company under the “control”, as such term is defined in
Rule 405 under the 1933 Act, of the Company nor, to the
Company’s knowledge, any affiliate of the Company not under
the “control” of the Company has taken, nor will the
Company or any such affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would
be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Securities.
(xviii) Possession of Licenses
and Permits . The Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them,
except where the failure so to possess would not, singly or in the
aggregate, result in a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, singly or in the aggregate, result in a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(xix) Leased Property . All
of the leases and subleases material to the business of the Company
and its subsidiaries, considered as one enterprise, and under which
the Company or any of its subsidiaries holds properties described
in the Prospectus, are in full force and effect, and neither the
Company nor any subsidiary has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of
the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or
sublease.
(xx) Investment Company Act .
The Company is not required, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be
required, to register as an “investment company” under
the Investment Company Act of 1940, as amended (the “1940
Act”) .
9
(xxi) Registration Rights .
There are no persons who will have registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under
the 1933 Act during the ninety days following the date hereof,
other than (i) those registration rights which are covered by
a separate, effective registration statement and which are not be
required to be registered pursuant to the Registration Statement,
(ii) Common Stock being offered for sale by the Selling
Shareholders pursuant to the Registration Statement and
(iii) any such rights which have been waived.
(xxii) Accounting Controls and
Disclosure Controls . (A) The Company and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with
management’s general or specific authorization;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. Except as described in the Prospectus, since the end
of the Company’s most recent audited fiscal year, there has
been (1) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and
(2) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting.
(B) The Company and its consolidated
subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act
is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management,
including its principal executive officer or officers and the
principal financial officer or officers, as appropriate, to allow
timely decisions regarding disclosure.
(xxiii) Compliance with the
Sarbanes-Oxley Act . There is and has been no failure on the
part of the Company or any of the Company’s directors or
officers, in their capacities as such, to comply in all material
respects with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications.
(xxiv) Payment of Taxes . All
United States federal income tax returns of the Company and its
subsidiaries required by law to be filed have been filed and all
taxes shown by such returns or otherwise assessed, which are due
and payable, have been paid, except assessments against which
appeals have been or will be promptly taken and as to which
adequate reserves have been provided. The United States federal
income tax returns of the Company through the fiscal year ended
December 31, 2007 have been settled and no assessment in
connection therewith has been made against the Company.
10
The Company and its subsidiaries
have filed all other tax returns that are required to have been
filed by them pursuant to applicable foreign, state, local or other
law except insofar as the failure to file such returns would not
result in a Material Adverse Effect, and has paid all taxes due
pursuant to such returns or pursuant to any assessment received by
the Company and its subsidiaries, except for such taxes, if any, as
are being contested in good faith and as to which adequate reserves
have been provided. The charges, accruals and reserves on the books
of the Company in respect of any income and corporation tax
liability for any years not finally determined are adequate to meet
any assessments or re-assessments for additional income tax for any
years not finally determined, except to the extent of any
inadequacy that would not result in a Material Adverse
Effect.
(xxv) Insurance . The Company
and its subsidiaries carry or are entitled to the benefits of
insurance, with financially sound and reputable insurers, in such
amounts and covering such risks that is reasonable and appropriate,
and all such insurance is in full force and effect. The Company has
no reason to believe that it or any subsidiary will not be able
(A) to renew its existing insurance coverage as and when such
policies expire or (B) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result
in a Material Adverse Effect. Since January 1, 2007, neither
of the Company nor any subsidiary has been denied any insurance
coverage which it has sought or for which it has
applied.
(xxvi) Foreign Corrupt Practices
Act . Neither the Company nor, to the knowledge of the Company,
any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company or any of its subsidiaries 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, to the
knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and
maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance
therewith.
(xxvii) Money Laundering Laws
. The operations of the Company are and have been conducted at all
times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all applicable jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
11
(xxviii) OFAC . Neither the
Company nor, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or person acting on behalf of
the Company is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(b) Representations and
Warranties by the Selling Shareholders . Each Selling
Shareholder severally and not jointly represents and warrants to
each Underwriter as of the date hereof, as of the Closing Time and
agrees with each Underwriter, as to itself as follows:
(i) Accurate Disclosure .
Such Selling Shareholder has reviewed and is familiar with the
Registration Statement, the General Disclosure Package and the
Prospectus and, with respect to information related to such Selling
Shareholder, none of the General Disclosure Package, the
Prospectus, or any amendments or supplements thereto includes any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Such Selling Shareholder is not prompted to sell the
Securities to be sold by such Selling Shareholder hereunder by any
information concerning the Company or any subsidiary of the Company
which is not set forth in the General Disclosure Package or the
Prospectus.
(ii) Authorization of this
Agreement . This Agreement has been duly executed and delivered
by or on behalf of such Selling Shareholder.
(iii) Authorization of Power of
Attorney and Custody Agreement . The Power of Attorney and
Custody Agreement, in the form heretofore furnished to the
Representatives (the “Power of Attorney and Custody
Agreement”), has been duly executed and delivered by such
Selling Shareholder and is the valid and binding agreement of such
Selling Shareholder.
(iv) Noncontravention . The
execution and delivery of this Agreement and the Power of Attorney
and Custody Agreement and the sale and delivery of the Securities
to be sold by such Selling Shareholder and the consummation of the
transactions contemplated herein and compliance by such Selling
Shareholder with its obligations hereunder do not and will not,
whether with or without the giving of notice or passage of time or
both, (i) conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any tax, lien,
charge or encumbrance upon the Securities to be sold by such
Selling Shareholder or any property or assets of such Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder may be bound, or to
which
12
any of the property or assets of
such Selling Shareholder is subject, (ii) nor will such action
result in any violation of the provisions of the charter or by-laws
or other organizational instrument of such Selling Shareholder, if
applicable, or (iii) result in the violation of any applicable
treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over such Selling
Shareholder or any of its properties; except in the cases of
clauses (i) and (iii) above, for any such conflict,
breach, or violation that would not adversely affect such Selling
Shareholder’s ability to perform its obligations hereunder or
otherwise have a material adverse effect on such Selling
Shareholder, or on its business or assets, taken as a
whole.
(v) Certificates Suitable for
Transfer . The Securities to be sold by such Selling
Shareholder pursuant to this Agreement are certificated securities
in registered form or, with respect to Securities to be issued upon
the exercise of options, will be certificated securities in
registered form on the Closing Date, and are not held in any
securities account or by or through any securities intermediary
within the meaning of the Uniform Commercial Code as in effect in
the State of New York (the “UCC”). Certificates for all
of the Securities to be sold by such Selling Shareholder pursuant
to this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment
in blank with signatures guaranteed, have been placed, or, with
respect to Securities to be sold by such Selling Stockholder upon
exercise of options, certificates of such Securities will be placed
on the Closing Date, in custody with Continental Stock
Transfer & Trust Company (the “Custodian”)
with irrevocable conditional instructions to deliver such
Securities to the Underwriters pursuant to this
Agreement.
(vi) Valid Title . Such
Selling Shareholder has, and at the Closing Time will have, valid
title to the Securities to be sold by such Selling Shareholder free
and clear of all security interests, claims, liens, equities or
other encumbrances (other than restrictions upon transfer under
Rule 144 of the Act) and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and the Power of Attorney and Custody Agreement and to
sell, transfer and deliver the Securities to be sold by such
Selling Shareholder.
(vii) Delivery of Securities
. Upon the Underwriters’ acquiring possession of the
Securities to be sold by such Selling Shareholder and paying the
purchase price therefor pursuant to this Agreement, each
Underwriter (assuming that no such Underwriter has notice of any
“adverse claim,” within the meaning of
Section 8-105 of the New York Uniform Commercial Code, to such
Securities) will be a “protected purchaser” of the
Securities to be purchased by it (within the meaning of
Section 8-303) and will acquire its
