<PAGE>
1,250,000 SHARES*
BTU INTERNATIONAL, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
December 12, 2005
NEEDHAM & COMPANY, LLC
As Representatives of the several
Underwriters
c/o Needham & Company, LLC
445 Park Avenue
New York, New York 10022
Ladies and Gentlemen:
BTU International, Inc., a Delaware
corporation (the "Company"), proposes to
issue and sell 1,250,000 shares (the "Firm
Shares") of the Company's Common
Stock, $.01 par value per share (the
"Common Stock"), to you and to the several
other Underwriters named in Schedule I
hereto (collectively, the
"Underwriters"), for whom you are acting as
representatives (the
"Representatives"). The Company has also
agreed to grant to you and the other
Underwriters an option (the "Option") to
purchase up to an additional 187,500
shares of Common Stock, on the terms and
for the purposes set forth in Section
1(b) (the "Option Shares"). The Firm Shares
and the Option Shares are referred
to collectively herein as the "Shares."
The Company confirms as follows its
agreement with the Representatives and the
several other Underwriters.
1
Agreement to
Sell and Purchase.
(a) On the
basis of the representations, warranties and agreements of the
Company herein contained and subject to all
the terms and conditions of this
Agreement, (i) the Company agrees to issue
and sell the Firm Shares to the
several Underwriters and (ii) each of the
Underwriters, severally and not
jointly, agrees to purchase from the
Company the respective number of Firm
Shares set forth opposite that
Underwriter's name in Schedule I hereto, at the
purchase price of $12.285 for each Firm
Share.
(b)
Subject to all the terms and conditions of this Agreement, the
Company
grants the Option to the several
Underwriters to purchase, severally and not
jointly, up to 187,500 Option Shares at the
same price per share as the
Underwriters shall pay for the Firm Shares.
The Option may be exercised only to
cover over-allotments in the sale of the
Firm Shares by the Underwriters and may
be exercised in whole or in part at any
time (but not more than once) on or
before the 30th day after the date of this
Agreement upon written or telegraphic
notice (the "Option Shares Notice") by the
Representatives to the Company no
later than 12:00 noon, New York City time,
at least two and no more than five
business days before the date specified for
closing in the Option Shares Notice
(the "Option Closing Date"), setting forth
the aggregate number of Option Shares
to be purchased and the time and date for
such purchase. On the Option Closing
Date, the Company will issue and sell to
the Underwriters the number of Option
Shares set forth in the Option Shares
Notice, and each Underwriter will purchase
such percentage of the Option Shares as is
equal to the percentage of Firm
Shares that such Underwriter is purchasing,
as adjusted by the Representatives
in such manner as they deem advisable to
avoid fractional shares.
----------
* Plus an option
to purchase up to an additional 187,500 shares to cover
over-allotments.
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2. Delivery and Payment. Delivery of
the Firm Shares shall be made to the
Representatives for the accounts of the
Underwriters against payment of the
purchase price by wire transfer payable in
same-day funds to the order of the
Company at the office of Needham &
Company, LLC, 445 Park Avenue, New York, New
York 10022, at 10:00 a.m., New York City
time, on the third (or, if the purchase
price set forth in Section 1(b) hereof is
determined after 4:30 P.M., Washington
D.C. time, the fourth) business day
following the date of this Agreement, or at
such time on such other date, not later
than seven business days after the date
of this Agreement, as may be agreed upon by
the Company and the Representatives
(such date is hereinafter referred to as
the "Closing Date").
To the
extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the
manner specified above) will take
place at the offices specified above for
the Closing Date at the time and date
(which may be the Closing Date) specified
in the Option Shares Notice.
Delivery
of the Firm Shares and the Option shares shall be made through
the facilities of The Depository Trust
Company unless Needham & Company, LLC
shall otherwise instruct.
3.
Representations and
Warranties of the Company. The Company represents,
warrants and covenants to each Underwriter
that:
(a) The
Company meets the requirements for use of Form S-3 and a
registration statement (Registration No.
333-129766) on Form S-3 relating to the
Shares, including a preliminary prospectus
and such amendments to such
registration statement as may have been
required to the date of this Agreement,
has been prepared by the Company under the
provisions of the Securities Act of
1933, as amended (the "Act"), and the rules
and regulations (collectively
referred to as the "Rules and Regulations")
of the Securities and Exchange
Commission (the "Commission") thereunder,
and has been filed with the
Commission. The term "preliminary
prospectus" as used herein means a preliminary
prospectus, including the documents
incorporated by reference therein, as
contemplated by Rules 430, 430A, 430B and
430C of the Rules and Regulations
included at any time as part of the
registration statement. Copies of such
registration statement and amendments and
of each related preliminary prospectus
have been delivered to the Representatives.
If such registration statement has
not become effective, a further amendment
to such registration statement,
including a form of final prospectus,
necessary to permit such registration
statement to become effective will be filed
promptly by the Company with the
Commission. If such registration statement
has become effective, a final
prospectus containing information permitted
to be omitted at the time of
effectiveness by Rules 430A, 430B or 430C
of the Rules and Regulations will be
filed promptly by the Company with the
Commission in accordance with Rule 424(b)
of the Rules and Regulations. The term
"Registration Statement" means the
registration statement as amended at the
time it becomes or became effective
(the "Effective Date"), including all
documents incorporated by reference
therein, financial statements and all
exhibits and schedules thereto and any
information deemed to be included by Rules
430A, 430B or 430C, and includes any
registration statement relating to the
offering contemplated by this Agreement
and filed pursuant to Rule 462(b) of the
Rules and Regulations. The term
"Pricing Prospectus" as used herein means
the preliminary prospectus that was
included in the Registration Statement
immediately prior to the Applicable Time
(as defined in Section 3(b) hereof). The
term "Prospectus" means the prospectus,
including the documents incorporated by
reference therein, as first filed with
the Commission pursuant to Rule 424(b) of
the Rules and Regulations. Any
reference herein to the terms "amend,"
"amendment" or "supplement" with respect
to the Registration Statement, any
preliminary prospectus, including the Pricing
Prospectus, or the Prospectus shall be
deemed to refer to and include the filing
of any document under the Securities
Exchange Act of 1934, as amended (the
"Exchange Act"), after the Effective Date,
the date of any preliminary
prospectus or the date of the Prospectus,
as the case may be, and deemed to be
incorporated therein by reference. Any
reference herein to "Issuer Free Writing
Prospectus" refers to any "issuer free
writing prospectus" as defined in Rule
433 under the Act.
(b) For
the purposes of this Agreement, the "Applicable Time" is 6:30
P.M.
(New York City time) on the date of this
Agreement; the Pricing Prospectus as
supplemented by the Issuer Free Writing
Prospectuses, if any, and other
documents listed on Schedule III(a) hereto,
taken together (collectively, the
"Pricing Disclosure Package") as of the
Applicable Time, did not include 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; and
each Issuer Free Writing Prospectus
listed on Schedule III(a) or Schedule
III(b) hereto does not conflict with the
information contained in the Registration
Statement, the Pricing Prospectus or
the Prospectus and each Issuer Free Writing
Prospectus listed on Schedule III(b)
hereto, as supplemented by and taken
together with the Pricing Disclosure
Package as of the Applicable Time, did not
include 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
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under which they were made, not misleading.
The foregoing representations and
warranties in this Section 3(b) do not
apply to any statements or omissions made
in reliance on and in conformity with
information relating to any Underwriter
furnished in writing to the Company by the
Representatives specifically for
inclusion in the Pricing Prospectus or an
Issuer Free Writing Prospectus.
(c) No
order preventing or suspending the use of any preliminary
prospectus or any Issuer Free Writing
Prospectus has been issued by the
Commission, and no stop order suspending
the effectiveness of the Registration
Statement (including any related
registration statement filed pursuant to Rule
462(b) under the Act) or any post-effective
amendment thereto has been issued,
and no proceeding for that purpose has been
initiated or threatened by the
Commission. On the date any preliminary
prospectus, including the Pricing
Prospectus, is filed with the Commission,
the Effective Date, the date the
Prospectus is first filed with the
Commission pursuant to Rule 424(b) (if
required), at all times during the period
through and including the Closing Date
and, if later, the Option Closing Date and
when any post-effective amendment to
the Registration Statement becomes
effective or any amendment or supplement to
the Prospectus is filed with the
Commission, the Registration Statement, any
preliminary prospectus, including the
Pricing Prospectus, and the Prospectus (as
amended or as supplemented if the Company
shall have filed with the Commission
any amendment or supplement thereto),
including the financial statements
included or incorporated by reference in
any preliminary prospectus, including
the Pricing Prospectus, or Prospectus, did
and will comply in all material
respects with all applicable provisions of
the Act, the Exchange Act, the rules
and regulations under the Exchange Act (the
"Exchange Act Rules and
Regulations"), and the Rules and
Regulations. On the Effective Date and when any
post-effective amendment to the
Registration Statement becomes effective, no
part of the Registration Statement did or
will contain an untrue statement of a
material fact or omit to state a material
fact required to be stated therein or
necessary in order to make the statements
therein not misleading. Each
preliminary prospectus, on the date it is
filed with the Commission, did not
contain any untrue statement of a material
fact or omit to state a material fact
necessary to make the statements therein,
in the light of the circumstances
under which they were made, not misleading.
At the date the Prospectus or any
amendment or supplement to the Prospectus
is filed with the Commission and at
the Closing Date and, if later, the Option
Closing Date, the Prospectus did not
and will not contain any untrue statement
of a material fact or omit to state a
material fact necessary to make the
statements therein, in the light of the
circumstances under which they were made,
not misleading. The foregoing
representations and warranties in this
Section 3(c) do not apply to any
statements or omissions made in reliance on
and in conformity with information
relating to any Underwriter furnished in
writing to the Company by the
Representatives specifically for inclusion
in the Registration Statement, any
preliminary prospectus or the Prospectus or
any amendment or supplement thereto.
(d) The
documents that are incorporated by reference in any preliminary
prospectus and the Prospectus or from which
information is so incorporated by
reference, when they were or are filed with
the Commission, complied or will
comply in all material respects with the
requirements of the Exchange Act and
the Exchange Act Rules and Regulations, as
applicable; and any documents so
filed and incorporated by reference in the
Prospectus or any further amendment
or supplement thereto subsequent to the
Effective Date shall, when such
documents are filed with the Commission,
comply in all material respects with
the requirements of the Act or the Exchange
Act, as applicable, and the Rules
and Regulations or the Exchange Act Rules
and Regulations, as applicable.
(e) The
Company acknowledges that the public offering price and the
statements set forth in the second, eighth,
ninth, tenth, eleventh, twelfth and
thirteenth paragraphs under the heading
"Underwriting" in the Pricing Prospectus
and Prospectus constitute the only
information relating to any Underwriter
furnished in writing to the Company by the
Representatives specifically for
inclusion in the Registration
Statement.
(f) The
Company does not own, and at the Closing Date and, if later,
the
Option Closing Date, will not own, directly
or indirectly, any shares of stock
or any other equity or long-term debt
securities of any corporation or have any
equity interest in any corporation, firm,
partnership, joint venture,
association or other entity, other than the
subsidiaries listed in Exhibit 21 to
Company's Annual Report on Form 10-K for
the year ended December 31, 2004 (the
"Subsidiaries"). The Company and each of
its Subsidiaries is, and at the Closing
Date and, if later, the Option Closing
Date, will be, a corporation or other
entity duly organized or formed, validly
existing and in good standing under the
laws of its jurisdiction of incorporation
or formation. The Company and each of
its Subsidiaries has, and at the Closing
Date and, if later, the Option Closing
Date, will have, full power and authority
to conduct all the activities
conducted by it, to own or lease all the
assets owned or leased by it and to
conduct its business as described in the
Registration Statement, the Pricing
Prospectus and the Prospectus. The Company
and each of its
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Subsidiaries is, and at the Closing Date
and, if later, the Option Closing Date,
will be, duly licensed or qualified to do
business and in good standing as a
foreign corporation in all jurisdictions in
which the nature of the activities
conducted by it or the character of the
assets owned or leased by it makes such
license or qualification necessary, except
to the extent that the failure to be
so qualified or be in good standing would
not materially and adversely affect
the Company and its Subsidiaries, taken as
a whole, or its business, properties,
condition (financial or other) or results
of operations, taken as a whole (such
effect is referred to herein as a "Material
Adverse Effect"). All of the
outstanding shares of capital stock of each
Subsidiary have been duly authorized
and validly issued and are fully paid and
nonassessable, and owned by the
Company free and clear of all claims,
liens, charges and encumbrances; there are
no securities outstanding that are
convertible into or exercisable or
exchangeable for capital stock of any
Subsidiary. The Company and its
Subsidiaries are not, and at the Closing
Date and, if later, the Option Closing
Date, will not be, engaged in any
discussions or a party to any agreement or
understanding, written or oral, regarding
the acquisition of an interest in any
corporation, firm, partnership, joint
venture, association or other entity where
such discussions, agreements or
understandings would require amendment to the
Registration Statement pursuant to
applicable securities laws. Complete and
correct copies of the certificate or
articles of incorporation and of the
by-laws of the Company and each of its
Subsidiaries and all amendments thereto
have been delivered to the Representatives,
and no changes therein will be made
subsequent to the date hereof and prior to
the Closing Date or, if later, the
Option Closing Date.
(g) The
Company has authorized, issued and outstanding capital stock as
set forth under the caption
"Capitalization" in the Pricing Prospectus and
Prospectus as of the date set forth
therein. All of the outstanding shares of
capital stock of the Company have been duly
authorized, validly issued and are
fully paid and nonassessable and were
issued in compliance with all applicable
state and federal securities laws; the
Shares have been duly authorized and when
issued and paid for as contemplated herein
will be validly issued, fully paid
and nonassessable; no preemptive or similar
rights exist with respect to any of
the Shares or the issue and sale thereof.
The description of the capital stock
of the Company included in the Registration
Statement, the Pricing Prospectus
and Prospectus is, and at the Closing Date
and, if later, the Option Closing
Date, will be, complete and accurate in all
respects. Except as set forth in the
Pricing Prospectus and the Prospectus, the
Company does not have outstanding,
and at the Closing Date will not have
outstanding, any options to purchase, or
any rights or warrants to subscribe for, or
any securities or obligations
convertible into, or any contracts or
commitments to issue or sell, any shares
of capital stock, or any such warrants,
convertible securities or obligations
(other than in connection with the exercise
of options to purchase the Company's
Common Stock granted pursuant to the
Company's stock option plans from the
shares reserved therefore or in connection
with the purchase of shares of the
Company's Common Stock pursuant to the
Company's employee stock purchase plan
from the shares reserved therefore, each as
described in the Registration
Statement). No further approval or
authority of stockholders or the Board of
Directors of the Company will be required
for the issuance and sale of the
Shares as contemplated herein. The
certificates evidencing the Shares are in due
and proper legal form and have been duly
authorized for issuance by the Company.
(h) The
financial statements and schedules included or incorporated by
reference in the Registration Statement,
the Pricing Prospectus or the
Prospectus present fairly the financial
condition of the Company and its
consolidated Subsidiaries as of the
respective dates thereof and the results of
operations and cash flows of the Company
and its consolidated Subsidiaries for
the respective periods covered thereby, all
in conformity with generally
accepted accounting principles applied on a
consistent basis throughout the
entire period involved, except as otherwise
disclosed in the Pricing Prospectus
and the Prospectus. No other financial
statements or schedules of the Company
are required by the Act, the Exchange Act,
the Exchange Act Rules and
Regulations or the Rules and Regulations to
be included in the Registration
Statement, the Pricing Prospectus or the
Prospectus. Vitale, Caturano & Company,
Ltd. (the "Accountants"), who have reported
on such financial statements and
schedules, are independent accountants with
respect to the Company as required
by the Act and the Rules and Regulations
and Rule 3600T of the Public Company
Accounting Oversight Board ("PCAOB"). The
summary and selected consolidated
financial and statistical data included in
the Registration Statement present
fairly the information shown therein and
have been compiled on a basis
consistent with the audited financial
statements presented in the Registration
Statement.
(i)
Subsequent to the respective dates as of which information is given
in
the Registration Statement, the Pricing
Prospectus and the Prospectus and prior
to or on the Closing Date and, if later,
the Option Closing Date, except as set
forth in or contemplated by the
Registration Statement, the Pricing Prospectus
and the Prospectus, (i) there has not been
and will not have been any change in
the capitalization of the Company (other
than in connection with the exercise of
options to purchase the Company's Common
Stock granted pursuant to the
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Company's stock option plans from the
shares reserved therefor or in connection
with the purchase of shares of the
Company's Common Stock pursuant to the
Company's employee stock purchase plan from
the shares reserved therefor, each
as described in the Registration
Statement), or any Material Adverse Effect
arising for any reason whatsoever, (ii)
neither the Company nor any of its
Subsidiaries has incurred nor will any of
them incur, except in the ordinary
course of business as described in the
Pricing Prospectus and the Prospectus,
any material liabilities or obligations,
direct or contingent, nor has the
Company or any of its Subsidiaries entered
into nor will it enter into, except
in the ordinary course of business as
described in the Pricing Prospectus and
the Prospectus, any material transactions
other than pursuant to this Agreement
and the transactions referred to herein and
(iii) the Company has not and will
not have paid or declared any dividends or
other distributions of any kind on
any class of its capital stock.
(j) The
Company is not, will not become as a result of the transactions
contemplated hereby, and will not conduct
its business in a manner that would
cause it to become, an "investment company"
or an "affiliated person" of, or
"promoter" or "principal underwriter" for,
an "investment company," as such
terms are defined in the Investment Company
Act of 1940, as amended.
(k) Except
as set forth in the Registration Statement, the Pricing
Prospectus and the Prospectus, there are no
actions, suits or proceedings
pending or, to the knowledge of the
Company, threatened against the Company, or
any of its Subsidiaries or any of their
officers in their capacity as such,
before or by any federal or state court,
commission, regulatory body,
administrative agency or other governmental
body, domestic or foreign, wherein
an unfavorable ruling, decision or finding
would have a Material Adverse Effect.
(l) The
Company and each Subsidiary has, and at the Closing Date and,
if
later, the Option Closing Date, will have,
performed all the obligations
required to be performed by it, and is not,
and at the Closing Date, and, if
later, the Option Closing Date, will not
be, in default, under any contract or
other instrument to which it is a party or
by which its property is bound or
affected, which default would reasonably be
expected to have a Material Adverse
Effect. To the knowledge of the Company, no
other party under any contract or
other instrument to which it or any of its
Subsidiaries is a party is in default
in any respect thereunder, which default
would reasonably be expected to have a
Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is, and
at the Closing Date and, if later, the
Option Closing Date, will not be, in
violation of any provision of its
certificate or articles of organization or
by-laws or other organizational
documents.
(m) No consent,
approval, authorization or order of, or any filing or
declaration with, any court or governmental
agency or body is required for the
consummation by the Company of the
transactions on its part contemplated herein,
except such as have been obtained under the
Act or the Rules and Regulations and
such as may be required under state
securities or so-called Blue Sky laws or the
by-laws and rules of the National
Association of Securities Dealers, Inc. (the
"NASD") in connection with the purchase and
distribution by the Underwriters of
the Shares.
(n) The
Company has full corporate power and authority to enter into
this
Agreement. This Agreement has been duly
authorized, executed and delivered by
the Company and constitutes a valid and
binding agreement of the Company,
enforceable against the Company in
accordance with the terms hereof. The
performance of this Agreement and the
consummation of the transactions
contemplated hereby will not result in the
creation or imposition of any lien,
charge or encumbrance upon any of the
assets of the Company pursuant to the
terms or provisions of, or result in a
breach or violation of any of the terms
or provisions of, or conflict with or
constitute a default under, or give any
party a right to terminate any of its
obligations under, or result in the
acceleration of any obligation under, the
certificate or articles of
incorporation or by-laws of the Company or
any of its Subsidiaries, any
indenture, mortgage, deed of trust, voting
trust agreement, loan agreement,
bond, debenture, note agreement or other
evidence of indebtedness, lease,
contract or other agreement or instrument
to which the Company or any of its
Subsidiaries is a party or by which the
Company, any of its Subsidiaries or any
of their properties is bound or affected,
or violate or conflict with any
judgment, ruling, decree, order, statute,
rule or regulation of any court or
other governmental agency or body
applicable to the business or properties of
the Company or any of its Subsidiaries.
(o) The
Company and its Subsidiaries have good and marketable title to
all
properties and assets described in the
Pricing Prospectus and the Prospectus as
owned by them, free and clear of all liens,
charges, encumbrances or
restrictions, except such as are described
in the Pricing Prospectus and the
Prospectus or are not material to the
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business of the Company or its
Subsidiaries. The Company and its Subsidiaries
have valid, subsisting and enforceable
leases for the properties described in
the Pricing Prospectus and the Prospectus
as leased by them. The Company and its
Subsidiaries own or lease all such
properties as are necessary to their
operations as now conducted, except where
the failure to so own or lease would
not have a Material Adverse Effect.
(p) There
is no document, contract, permit or instrument, affiliate
transaction or off-balance sheet
transaction (including, without limitation, any
"variable interests" in "variable interest
entities," as such terms are defined
in Financial Accounting Standards Board
Interpretation No. 46) of a character
required to be described in the
Registration Statement, the Pricing Prospectus
or the Prospectus or to be filed as an
exhibit to the Registration Statement
that is not described or filed as required.
All such contracts to which the
Company or any of its Subsidiaries is a
party have been duly authorized,
executed and delivered by the Company or
such Subsidiary, constitute valid and
binding agreements of the Company or such
Subsidiary and are enforceable against
and by the Company or such Subsidiary in
accordance with the terms thereof
except (i) as the enforceability thereof
may be limited by bankruptcy,
insolvency, reorganization, moratorium or
other similar laws affecting the
enforcement of creditors' rights generally
and by general equitable principles
and (ii) to the extent that rights to
indemnity or contribution may be limited
by Federal and state securities laws or the
public policy underlying such laws.
(q) No
statement, representation, warranty or covenant made by the
Company
in this Agreement or made in any
certificate or document required by Section 5
of this Agreement to be delivered to the
Representatives was or will be, when
made, inaccurate, untrue or incorrect.
(r) The
Company has not distributed and will not distribute prior to
the
later of (i) the Closing Date or, if later,
the Option Closing Date, and (ii)
completion of the distribution of the
Shares, any offering material in
connection with the offering and sale of
the Shares other than any preliminary
prospectuses, Issuer Free Writing
Prospectuses listed on Schedules III(a) or
III(b) hereto, the Prospectus, the
Registration Statement and other materials,
if any, permitted by the Act and the Rules
and Regulations. Neither the Company
nor any of its directors, officers or
controlling persons has taken, directly or
indirectly, any action designed, or that
might reasonably be expected, to cause
or result, under the Act or otherwise, in,
or that has constituted,
stabilization or manipulation of the price
of any security of the Company to
facilitate the sale or resale of the
Shares.
(s) No
holder of securities of the Company has rights to the
registration
of any securities of the Company because of
the filing of the Registration
Statement, which rights have not been
waived by the holder thereof as of the
date hereof.
(t) The
Common Stock is registered under Section 12(g) of the Exchange
Act, and the Company has filed a notice of
listing additional shares with the
NASDAQ National Market ("NASDAQ") and has
not been informed that such
application has been rejected by the
NASDAQ. The Company has taken all necessary
actions within its control to ensure that
it will be in compliance with all
applicable corporate governance
requirements set forth in the NASDAQ Marketplace
Rules that are then in effect. The issuance
and sale of Shares contemplated by
this Agreement does not require the prior
approval of the Company's stockholders
pursuant to NASDAQ Marketplace Rule
4350(i)(1)(D).
(u) Except
as disclosed in or specifically contemplated by the Pricing
Prospectus and the Prospectus (i) each of
the Company and each of its
Subsidiaries owns or has adequate rights to
use all trademarks, trade names,
domain names, patents, patent rights, mask
works, copyrights, technology,
know-how (including trade secrets and other
unpatented or unpatentable
proprietary or confidential information,
systems or procedures), service marks,
trade dress rights, and other intellectual
property (collectively, "Intellectual
Property") and has such other licenses,
approvals and governmental
authorizations, in each case, sufficient to
conduct its business as now
conducted, and, to the Company's knowledge,
none of the foregoing Intellectual
Property rights owned or licensed by the
Company or any of its Subsidiaries is
invalid or unenforceable, (ii) the Company
has no knowledge of any infringement
by it or any of its Subsidiaries of
Intellectual Property rights of others,
where such infringement could have a
Material Adverse Effect, (iii) the Company
is not aware of any infringement,
misappropriation or violation by others of, or
conflict by others with rights of the
Company or any of its Subsidiaries with
respect to, any Intellectual Property, (iv)
there is no claim being made against
the Company or any of its Subsidiaries or,
to the knowledge of the Company, any
employee of the Company or any of its
Subsidiaries, regarding Intellectual
Property or other infringement that could
have a Material Adverse Effect, and
(v) the Company and its Subsidiaries have
not received
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<PAGE>
any notice of infringement with respect to
any patent or any notice challenging
the validity, scope or enforceability of
any Intellectual Property owned by or
licensed to the Company or any of its
Subsidiaries, in each case the loss of
which patent or Intellectual Property (or
loss of rights thereto) would have a
Material Adverse Effect.
(v) The
Company and each of its Subsidiaries has filed all federal,
state,
local and foreign income tax returns that
have been required to be filed and has
paid all taxes and assessments received by
it to the extent that such taxes or
assessments have become due, other than
those being contested. Neither the
Company nor any of its Subsidiaries has any
tax deficiency that has been or, to
the knowledge of the Company, might be
asserted or threatened against it that
would have a Material Adverse Effect.
(w) Except
as disclosed in the Pricing Prospectus and the Prospectus, the
Company or its Subsidiaries owns or
possesses all authorizations, approvals,
orders, licenses, registrations, other
certificates and permits of and from all
governmental regulatory officials and
bodies, necessary to conduct their
respective businesses as contemplated in
the Pricing Prospectus and the
Prospectus, except where the failure to own
or possess all such authorizations,
approvals, orders, licenses, registrations,
other certificates and permits would
not have a Material Adverse Effect. There
is no proceeding pending or threatened
(or any basis therefor known to the
Company) that may cause any such
authorization, approval, order, license,
registration, certificate or permit to
be revoked, withdrawn, cancelled, suspended
or not renewed; and the Company and
each of its Subsidiaries is conducting its
business in compliance with all laws,
rules and regulations applicable thereto
(including, without limitation, all
applicable federal, state and local
environmental laws and regulations) except
where such noncompliance would not have a
Material Adverse Effect.
(x) The
Company and each of its Subsidiaries maintains insurance of the
types and in the amounts generally deemed
adequate for its business, including,
but not limited to, insurance covering real
and personal property owned or
leased by the Company and its 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.
(y)
Neither the Company nor any of its Subsidiaries has nor, to the
Company's knowledge, any of its or their
respective employees or agents at any
time during the last five years (i) made
any unlawful contribution to any
candidate for foreign office, or failed to
disclose fully any contribution in
violation of law, or (ii) made any payment
to any federal or state governmental
officer or official, or other person
charged with similar public or quasi-public
duties, other than payments required or
permitted by the laws of the United
States or any jurisdiction thereof.
(z) The
books, records and accounts of the Company and its Subsidiaries
accurately and fairly reflect, in
reasonable detail, the transactions in, and
dispositions of, the assets of, and the
results of operations of, the Company
and its Subsidiaries. The Company and each
of the Subsidiaries maintains a
consolidated system of internal accounting
controls sufficient to provide
reasonable assurance that (i) transactions
are executed in accordance with
management's general or specific
authorizations, (ii) transactions are recorded
as necessary to permit preparation of
financial statements in conformity with
generally accepted accounting principles
and to maintain asset accountability,
(iii) access to assets is permitted only in
accordance with management's general
or specific authorization and (iv) the
recorded accountability for assets is
compared with the existing assets at
reasonable intervals and appropriate action
is taken with respect to any differences.
The principal executive officers (or
their equivalents) and principal financial
officers (or their equivalents) of
the Company have duly made all
certifications required by the Sarbanes-Oxley Act
of 2002 (the "Sarbanes-Oxley Act") and any
related rules and regulations
promulgated by the Commission, and the
statements contained in any such
certification are complete and correct as
of the respective dates thereof. The
Company has established "disclosure
controls and procedures" (as such term is
defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and "internal control
over financial reporting" (as such term is
defined in Rule 13a-15 and 15d-15
under the Exchange Act); such disclosure
controls and procedures are designed to
ensure that material information relating
to the Company, including its
consolidated subsidiaries, is made known to
the Company's Chief Executive
Officer and its Chief Financial Officer by
others within those entities, and
such disclosure controls and procedures are
effective to perform the functions
for which they were established; the
Company's auditors and the Audit Committee
of the Board of Directors of the Company
have been advised of: (i) all
significant deficiencies and material
weaknesses in the design or operation of
internal controls over financial reporting
which are reasonably likely to
adversely affect the Company's ability to
record, process, summarize, and report
financial information that have been
identified by management; and (ii) any
fraud known to
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<PAGE>
the Company, whether or not material, that
involves management or other
employees who have a significant role in
the Company's internal controls over
financial reporting.
(aa) The
Company is in compliance in all material respects with all
applicable provisions of the Sarbanes-Oxley
Act and all rules and regulations
promulgated thereunder that are in effect,
is implementing the provisions
thereof in accordance thereof, and is
actively taking steps designed to ensure
that it will be in compliance with other
applicable provisions of the
Sarbanes-Oxley Act not currently in effect
upon the effectiveness of such
provisions.
(bb) No
material labor dispute with the employees of the Company or any
of
its Subsidiaries exist except as described
in the Pricing Prospectus and the
Prospectus, or, to the knowledge of the
Company, is imminent; and the Company
(without having conducted any independent
investigation) is not aware of any
existing, threatened or imminent labor
disturbance by the employees of any of
its principal suppliers, manufactures or
contractors that might result in a
Material Adverse Effect.
(cc) There
has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or
other release of any kind of toxic
or other wastes or other hazardous
substances by, due to, or caused by, the
Company or any Subsidiary (or, to the
Company's knowledge, any other entity for
whose acts or omissions the Company is or
may be liable) upon any property now
or previously owned or leased by the
Company or any Subsidiary, or upon any
other property, which would be a violation
of or give rise to any liability
under any applicable law, rule, regulation,
order, judgment, decree or permit
relating to pollution or protection of
human health and the environment
("Environmental Law"), except as disclosed,
or not required to be disclosed, in
the Pricing Prospectus and the Prospectus
or as would not have a Material
Adverse Effect. Neither the Company nor any
Subsidiary has agreed to assume,
undertake or provide indemnification for
any liability of any other person under
any Environmental Law, including any
obligation for cleanup or remedial action,
except as disclosed, or not required to be
disclosed, in the Pricing Prospectus
and the Prospectus. Except as disclosed, or
not required to be disclosed, in the
Pricing Prospectus and the Prospectus,
there is no pending or, to the Company's
knowledge, threatened administrative,
regulatory or judicial action, claim or
notice of noncompliance or violation,
investigation or proceedings relating to
any Environmental Law against the Company
or any Subsidiary.
(dd) As
the time of filing of the Registration Statement the Company
was
not, and the Company on the date of this
Agreement is not, an "ineligible
issuer" as defined under Rule 405 under the
Act.
4.
Agreements of the
Company. The Company covenants and agrees with the
several Underwriters as follows:
(a) The
Company will not, either prior to the Effective Date or
thereafter
during such period as the Prospectus (or in
lieu thereof, the notice referred to
in Rule 173(a) under the Act) is required
by law to be delivered in connection
with sales of the Shares by an Underwriter
or dealer, file any amendment or
supplement to the Registration Statement or
the Prospectus, unless a copy
thereof shall first have been submitted to
the Representatives within a
reasonable period of time prior to the
filing thereof and the Representatives
shall not have reasonably objected thereto
in good faith.
(b) The
Company will use its best efforts to cause the Registration
Statement to become effective, and will
notify the Representatives promptly, and
will confirm such advice in writing, (i)
when the Registration Statement has
become effective and when any
post-effective amendment thereto becomes
effective, (ii) of any request by the
Commission for amendments or supplements
to the Registration Statement, the Pricing
Prospectus or the Prospectus or for
additional information, (iii) of the
issuance by the Commission of any stop
order suspending the effectiveness of the
Registration Statement or the
initiation of any proceedings for that
purpose or the threat thereof, (iv) of
the happening of any event during the
period mentioned in the third sentence of
Section 4(e) that in the judgment of the
Company makes any statement made in the
Registration Statement, the Pricing
Prospectus or the Prospectus untrue or that
requires the making of any changes in the
Registration Statement, the Pricing
Prospectus or the Prospectus in order to
make the statements therein, in the
light of the circumstances in which they
are made, not misleading, and (v) of
receipt by the Company or any
representative or attorney of the Company of any
other communication from the Commission
relating to the Company, the
Registration Statement, any preliminary
prospectus or the Prospectus. If at any
time the Commission shall issue any order
suspending the effectiveness of the
Registration Statement, the Company will
make every reasonable effort to obtain
the withdrawal of such order at the
earliest possible moment.
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<PAGE>
If the Company has omitted any information
from the Registration Statement
pursuant to Rule 430A, 430B or 430C of the
Rules and Regulations, the Company
will comply with the provisions of and make
all requisite filings with the
Commission pursuant to said Rule 430A, 430B
and 430C and notify the
Representatives promptly of all such
filings. If the Company elects to rely upon
Rule 462(b) under the Act, the Company
shall file a registration statement under
Rule 462(b) with the Commission in
compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this
Agreement, and the Company shall at
the time of filing either pay to the
Commission the filing fee for such Rule
462(b) registration statement or give
irrevocable instructions for the payment
of such fee pursuant to the Rules and
Regulations. The Company will file
promptly all material required to be filed
by the Company with the Commission
pursuant to Rule 433(d) under the Act.
(c) The
Company will furnish to each Representative, without charge,
one
conformed copy of each of the Registration
Statement and of any pre- or
post-effective amendment thereto, including
financial statements and schedules,
and all exhibits thereto and will furnish
to the Representatives, without
charge, for transmittal to each of the
other Underwriters, a copy of the
Registration Statement and any pre- or
post-effective amendment thereto,
including financial statements and
schedules but without exhibits.
(d) The
Company will comply with all the provisions of any undertakings
contained in the Registration
Statement.
(e) On the
Effective Date, and thereafter from time to time, the Company
will deliver to each of the Underwriters,
without charge, as many copies of each
Issuer Free Writing Prospectus and
Prospectus or any amendment or supplement
thereto
