Exhibit 1.1
EXECUTION VERSION
D
RIL
-Q
UIP
, I
NC
.
3,000,000 Shares
Common Stock
($0.01 par value per Share)
U NDERWRITING A GREEMENT
December 14, 2005
U NDERWRITING A GREEMENT
December 14, 2005
UBS Securities LLC
Morgan Stanley & Co.
Incorporated
Lehman Brothers Inc.
Simmons & Company
International
Howard Weil Incorporated
as Managing
Underwriters
c/o UBS Securities LLC
299 Park Avenue
New York, New York
10171-0026
Ladies and Gentlemen:
Dril-Quip, Inc., a Delaware
corporation (the “ Company ”), proposes to issue
and sell, and each person or entity (each, a “ Selling
Stockholder ”) identified as a Selling Stockholder in
Schedule C annexed hereto proposes to sell, to the
underwriters named in Schedule A annexed hereto (the “
Underwriters ”), for whom you are acting as
representatives, an aggregate of 3,000,000 shares (the “
Firm Shares ”) of common stock, $0.01 par value per
share (the “ Common Stock ”), of the Company, of
which 1,500,000 Firm Shares are to be issued and sold by the
Company and an aggregate of 1,500,000 Firm Shares are to be sold by
the Selling Stockholders. The number of Firm Shares to be sold by
each Selling Stockholder is the number of Firm Shares set forth
opposite the name of such Selling Stockholder in Schedule C
annexed hereto. In addition, solely for the purpose of covering
over-allotments, the Selling Stockholders and the Company propose
to grant to the Underwriters the option to purchase from the
Selling Stockholders and the Company up to an additional 450,000
shares of Common Stock (the “ Additional Shares
”). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the “ Shares
.” The Shares are described in the Prospectus which is
referred to below.
The Company has prepared and filed,
in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively,
the “ Act ”), with the Securities and Exchange
Commission (the “ Commission ”) a registration
statement on Form S-3 (File No. 333-128989) under the Act (the
“ registration statement ”). Amendments to such
registration statement, if necessary or appropriate, have been
similarly prepared and filed with the Commission in accordance with
the Act. Such registration statement, as so amended, has become
effective under the Act.
Except where the context otherwise
requires, “ Registration Statement ,” as used
herein, means the registration statement, as amended at the time of
such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the
respective Underwriters (the “ Effective Time
”), including (i) all documents filed as a part thereof
or incorporated or deemed to be incorporated by reference therein,
(ii) any information contained or incorporated by reference in
a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, to the extent such information is deemed, pursuant
to Rule 430B or Rule 430C
under the Act, to be part of the registration
statement at the Effective Time, and (iii) any registration
statement filed to register the offer and sale of Shares pursuant
to Rule 462(b) under the Act.
The Company has furnished to you,
for use by the Underwriters and by dealers in connection with the
offering of the Shares, copies of one or more preliminary
prospectus supplements, and the documents incorporated by reference
therein, relating to the Shares. Except where the context otherwise
requires, “ Pre-Pricing Prospectus ,” as used
herein, means each such preliminary prospectus supplement, in the
form so furnished, including any basic prospectus (whether or not
in preliminary form) furnished to you by the Company and attached
to or used with such preliminary prospectus supplement. Except
where the context otherwise requires, “ Basic
Prospectus ,” as used herein, means any such basic
prospectus and any basic prospectus furnished to you by the Company
and attached to or used with the Prospectus Supplement (as defined
below).
Except where the context otherwise
requires, “ Prospectus Supplement ,” as used
herein, means the final prospectus supplement relating to the
Shares, filed by the Company with the Commission pursuant to Rule
424(b) under the Act 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 to you for use by the
Underwriters and by dealers in connection with the offering of the
Shares.
Except where the context otherwise
requires, “ Prospectus ,” as used herein, means
the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“ Permitted Free Writing
Prospectuses ,” as used herein, means the documents
listed on Schedule B attached hereto.
“ Disclosure Package
,” as used herein, means any Pre-Pricing Prospectus or Basic
Prospectus, in either case together with any combination of one or
more of the Permitted Free Writing Prospectuses, if any.
Any reference herein to the
registration statement, the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement,
the Prospectus or any Permitted Free Writing Prospectus shall be
deemed to refer to and include the documents, if any, incorporated
by reference, or deemed to be incorporated by reference, therein
(the “ Incorporated Documents ”). Any reference
herein to the terms “ amend ,” “
amendment ” or “ supplement ” with
respect to the Registration Statement, any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus
or any Permitted Free Writing Prospectus shall be deemed to refer
to and include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “ Exchange Act ”)
on or after the initial effective date of the Registration
Statement, or the date of such Basic Prospectus, such Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or such
Permitted Free Writing Prospectus, as the case may be, and deemed
to be incorporated therein by reference.
2
As used in this Agreement, “
business day ” shall mean a day on which the New York
Stock Exchange (the “ NYSE ”) is open for
trading. The terms “herein,” “hereof,”
“hereto,” “hereinafter” and similar terms,
as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement. The term
“or,” as used herein, is not exclusive.
The Company, each of the Selling
Stockholders and the Underwriters agree as follows:
1. Sale and Purchase . Upon
the basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Company agrees to issue
and sell, and each of the Selling Stockholders agrees to sell, in
each case severally and not jointly, to the respective Underwriters
and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company and each Selling Stockholder, the
respective number of Firm Shares (subject to such adjustment as UBS
Securities LLC (“ UBS ”) and Morgan
Stanley & Co. Incorporated (“ Morgan Stanley
”) may jointly determine to avoid fractional shares) which
bears the same proportion to the total number of Firm Shares to be
sold by the Company or by such Selling Stockholder, as the case may
be, as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule A annexed hereto, subject to
adjustment in accordance with Section 10 hereof, bears to the
total number of Firm Shares, in each case at a purchase price of
$49.92 per Share. The Company is advised by you that the
Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the
effectiveness of this Agreement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set
forth in the Prospectus. You may from time to time increase or
decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, the Selling
Stockholders, in each case severally and not jointly, and the
Company hereby grant to the several Underwriters the option (the
“ Over-Allotment Option ”) to purchase, and upon
the basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the Company
and the Selling Stockholders, ratably in accordance with the number
of Firm Shares to be purchased by each of them, all or a portion of
the Additional Shares as may be necessary to cover over-allotments
made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the
Company and the Selling Stockholders for the Firm Shares. The
Over-Allotment Option may be exercised jointly by UBS and Morgan
Stanley on behalf of the several Underwriters at any time and from
time to time on or before the thirtieth day following the date of
the Prospectus Supplement, by written notice to the Company and the
Selling Stockholders. Such notice shall set forth the aggregate
number of Additional Shares as to which the Over-Allotment Option
is being exercised and the date and time when the Additional Shares
are to be delivered (any such date and time being herein referred
to as an “ additional time of purchase ”);
provided , however , that no additional time of
purchase shall be earlier than the “time of purchase”
(as defined below) nor earlier than the second business day after
the date on which the Over-Allotment Option shall have been
exercised nor later than the tenth business day after the date on
which the Over-Allotment Option shall have been exercised. The
number of Additional Shares to be sold to each Underwriter
shall
3
be the number which bears the same proportion to
the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number
of Firm Shares (subject, in each case, to such adjustment as UBS
and Morgan Stanley may jointly determine to eliminate fractional
shares), subject to adjustment in accordance with Section 10
hereof. Upon any exercise of the Over-Allotment Option, the first
423,075 shares (the “Selling Stockholder Additional
Shares”) to be sold will be sold by the Selling Stockholders
with the number of Additional Shares to be purchased from each
Selling Stockholder to be the number which bears the same
proportion to the aggregate number of Additional Shares being
purchased as the number of Additional Shares set forth opposite the
name of such Selling Stockholder in Schedule C annexed
hereto bears to 423,075, subject, in each case, to such adjustment
as UBS and Morgan Stanley may jointly determine solely to eliminate
fractional shares. Any Additional Shares to be purchased in excess
of the Selling Stockholder Additional Shares shall be purchased
from the Company.
Pursuant to powers of attorney (the
“ Powers of Attorney ”) granted by each Selling
Stockholder (which Powers of Attorney shall be satisfactory to UBS
and Morgan Stanley), J. Mike Walker and Jerry M. Brooks shall act
as representatives of the Selling Stockholders. Each of the
foregoing representatives (collectively, the “
Representatives of the Selling Stockholders ”) is
authorized, on behalf of each Selling Stockholder, among other
things, to execute any documents necessary or desirable in
connection with the sale of the Shares to be sold hereunder by such
Selling Stockholder, to make delivery of the certificates of such
Shares, to receive the proceeds of the sale of such Shares, to give
receipts for such proceeds, to pay therefrom the expenses to be
borne by such Selling Stockholder in connection with the sale and
public offering of the Shares, to distribute the balance of such
proceeds to such Selling Stockholder, to receive notices on behalf
of such Selling Stockholder and to take such other action as may be
necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. Payment and Delivery .
Payment of the purchase price for the Firm Shares shall be made to
the Company and to each Selling Stockholder by Federal Funds wire
transfer against delivery of the certificates for the Firm Shares
to you through the facilities of The Depository Trust Company
(“ DTC ”) for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00
A.M., New York City time, on December 20, 2005 (unless another
time shall be agreed to by you and the Company and any
Representative of the Selling Stockholders or unless postponed in
accordance with the provisions of Section 10 hereof). The time
at which such payment and delivery are to be made is hereinafter
sometimes called “ the time of purchase .”
Electronic transfer of the Firm Shares shall be made to you at the
time of purchase in such names and in such denominations as you
shall specify.
Payment of the purchase price for
the Additional Shares shall be made at the additional time of
purchase in the same manner and at the same office as the payment
for the Firm Shares. Electronic transfer of the Additional Shares
shall be made to you at the additional time of purchase in such
names and in such denominations as you shall specify.
Deliveries of the documents
described in Section 8 hereof with respect to the purchase of
the Shares shall be made at the offices of Vinson & Elkins
L.L.P. at 1001 Fannin
4
Street, Suite 2300, Houston, Texas 77002-6760,
at 9:00 A.M., New York City time, on the date of the closing of the
purchase of the Firm Shares or the Additional Shares, as the case
may be.
3. Representations and Warranties
of the Company . The Company represents and warrants to and
agrees with each of the Underwriters that:
(a) the Registration Statement has
heretofore become effective under the Act or, with respect to any
registration statement to be filed to register the offer and sale
of Shares pursuant to Rule 462(b) under the Act, will be filed with
the Commission and become effective under the Act no later than
10:00 P.M., New York City time, on the date of determination of the
public offering price for the Shares; no stop order of the
Commission preventing or suspending the use of any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement,
the Prospectus or any Permitted Free Writing Prospectus, or the
effectiveness of the Registration Statement, has been issued, and
no proceedings for such purpose are pending before or, to the
Company’s knowledge, are threatened by the
Commission;
(b) the Registration Statement
complied when it became effective, complies as of the date hereof
and, as amended or supplemented, at the time of purchase, each
additional time of purchase, 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 Act; 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 Act (including, without
limitation, Rule 415(a)(5)); the Registration Statement did not, as
of the Effective Time, 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; each
Pre-Pricing Prospectus complied, at the time it was filed with the
Commission, and complies as of the date hereof, in all material
respects with the requirements of the Act; at no time during the
period that begins on the earlier of the date of such Pre-Pricing
Prospectus and the date such Pre-Pricing Prospectus was filed with
the Commission and ends at the time of purchase did or will any
Pre-Pricing Prospectus, as then amended or supplemented, include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and at no time during such period did or will any
Pre-Pricing Prospectus, as then amended or supplemented, together
with any combination of one or more of the then issued Permitted
Free Writing Prospectuses, if any, include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; each of the Prospectus
Supplement and the Prospectus will comply, as of the date that it
is filed with the Commission, the date of the Prospectus
Supplement, the time of purchase, each additional time of purchase,
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
5
under the Act or any similar rule)
in connection with any sale of Shares, in all material respects,
with the requirements of the Act (in the case of the Prospectus,
including, without limitation, Section 10(a) of the Act); at
no time during the period that begins on the earlier of the date of
the Prospectus Supplement and the date the Prospectus Supplement is
filed with the Commission and ends at the later of the time of
purchase, the latest additional time of purchase, if any, and the
end of the period 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 did or will any Prospectus Supplement or the Prospectus,
as then amended or supplemented, include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
ˆ¸pΈprovided , however ,
that the Company makes no representation or warranty with respect
to any statement contained in the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus in reliance upon and in conformity with
information furnished in writing by or on behalf of an Underwriter
through you to the Company expressly for use in the Registration
Statement, such Pre-Pricing Prospectus, the Prospectus or such
Permitted Free Writing Prospectus; each Incorporated Document, at
the time such document was filed with the Commission or at the time
such document became effective, as applicable, complied, in all
material respects, with the requirements of the Exchange Act and
did not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(c) prior to the execution of this
Agreement, the Company has not, directly or indirectly, offered or
sold any Shares by means of any “prospectus” (within
the meaning of the Act) or used any “prospectus”
(within the meaning of the Act) in connection with the offer or
sale of the Shares, in each case other than the Pre-Pricing
Prospectuses and the Permitted Free Writing Prospectuses, if any;
the Company has not, directly or indirectly, prepared, used or
referred to any Permitted Free Writing Prospectus except in
compliance with Rules 164 and 433 under the Act; assuming that such
Permitted Free Writing Prospectus is so sent or given after the
Registration Statement was filed with the Commission (and after
such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), the sending
or giving, by any Underwriter, of any Permitted Free Writing
Prospectus will satisfy the provisions of Rule 164 or Rule 433
(without reliance on subsections (b), (c) and (d) of Rule
164); the conditions set forth in one or more of subclause
(i) through (iv), inclusive, of Rule 433(b)(1) under the Act
are satisfied, and the registration statement relating to the
offering of the Shares contemplated hereby, as initially filed with
the Commission, includes a prospectus that, other than by reason of
Rule 433 or Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the
Underwriters are disqualified, by reason of subsection (f) or
(g) of Rule 164 under the Act, from using, in connection with
the offer and sale of the Shares, “free writing
prospectuses” (as defined in Rule 405 under the Act) pursuant
to Rules 164 and 433 under the Act; the Company is not an
“ineligible issuer” (as defined in Rule 405 under the
Act) as of the eligibility determination date for purposes of Rules
164 and 433 under
6
the Act with respect to the offering
of the Shares contemplated by the Registration
Statement;
(d) in accordance with Rule
2710(b)(7)(C)(i) of the National Association of Securities Dealers,
Inc. (the “ NASD ”), the Shares have been
registered with the Commission on Form S-3 under the Act pursuant
to the standards for such Form S-3 in effect prior to
October 21, 1992;
(e) the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the State of Delaware, has the corporate power
and authority to own its property and conduct its business as
described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, and as of the time of purchase will be duly
qualified to transact business and in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and the
Subsidiaries (as defined below), taken as a whole;
(f) the Company has no subsidiaries
(as defined under the Act) other than the subsidiaries listed on
Schedule D annexed hereto (collectively, the “
Subsidiaries ”); each Subsidiary has been duly
organized and is validly existing in good standing under the laws
of the jurisdiction of its incorporation, has the corporate or
limited company power and authority to own its property and to
conduct its business as described in the Registration Statement,
the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, and has complied with the applicable
requirements for it to conduct business in each jurisdiction in
which it conducts business or owns or leases property, except to
the extent that the failure to so comply would not have a material
adverse effect on the Company and the Subsidiaries, taken as a
whole;
(g) all of the outstanding shares of
capital stock of each Subsidiary are validly issued and outstanding
and all of the shares of each Subsidiary are owned, directly or
indirectly, by the Company (with the exception of one share of
Dril-Quip (Europe), Limited, which is owned of record by Larry E.
Reimert), free and clear of any liens, charges or encumbrances or
any other claim of any third party; all of the shares of each
Subsidiary have been issued in compliance with all applicable
securities laws, were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right; no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into
shares of capital stock in the Subsidiaries are outstanding; other
than the capital stock of the Subsidiaries, the Company does not
own, directly or indirectly, any shares of stock or any other
equity interests or long-term debt securities of any corporation,
firm, partnership, joint venture, association or other entity; the
Company has no “significant subsidiary,” as that term
is defined in Rule 1-02(w) of Regulation S-X under the Act, other
than Dril-Quip (Europe), Limited, Dril-Quip Asia Pacific P.T.E.,
Ltd. and DQ Holdings PTY Ltd.;
7
(h) this Agreement has been duly
authorized, executed and delivered by the Company;
(i) the authorized capital stock of
the Company, including the Shares, conforms as to legal matters in
all material respects to each description thereof, if any,
contained in the Registration Statement, any Pre-Pricing
Prospectuses, the Prospectus or any Permitted Free Writing
Prospectus;
(j) as of the date of this
Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration
Statement, the Pre-Pricing Prospectuses and the Prospectus entitled
“Capitalization” and “Description of capital
stock” (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus), and, as of the
time of purchase and any additional time of purchase, as the case
may be, the Company shall have an authorized and outstanding
capitalization as set forth in the sections of the Registration
Statement and the Prospectus entitled “Capitalization”
and “Description of capital stock” (and any similar
sections or information, if any, contained in any Permitted Free
Writing Prospectus) (subject, in each case, to the issuance of
shares of Common Stock upon exercise of stock options disclosed as
outstanding in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus and the
grant of options under existing stock option plans described in the
Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus); all of the issued and
outstanding shares of capital stock, including the Common Stock, of
the Company have been duly authorized and are validly issued and
fully paid and non-assessable, have been issued in compliance with
all applicable securities laws and were not issued in violation of
any preemptive right, resale right, right of first refusal or
similar right; the Shares are duly listed, and admitted and
authorized for trading, subject to official notice of issuance, on
the New York Stock Exchange (the “ NYSE
”);
(k) the Shares to be sold by the
Company have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject
to any statutory or contractual preemptive rights, resale rights,
rights of first refusal or similar rights.
(l) there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any
(exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement);
(m) neither the Company nor any of
the Subsidiaries is (A) in violation of its charter or bylaws,
or (B) in violation of any federal, state, local or foreign
law, regulation or rule applicable to it, or (C) in violation
of any rule or regulation of any self-regulatory organization or
other non-governmental regulatory authority (including,
without
8
limitation, the rules and
regulations of the NYSE) applicable to it, or (D) in violation
of any decree, judgment or order applicable to it or any of its
properties, or (E) in breach of or in default under (nor has
any event occurred which, with notice, lapse of time or both, would
result in any breach of or constitute a default under) any
indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which it is a party or by which
it or any of its properties may be bound which, in the case of
clauses (B), (C), (D) or (E), would have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business or operations of the Company and the Subsidiaries, taken
as a whole;
(n) the execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any provision
of (i) the charter or bylaws or other organizational documents
of the Company or any of the Subsidiaries, (ii) any agreement
or other instrument binding upon the Company or any of the
Subsidiaries, (iii) any law, rule or regulation applicable to
the Company and the Subsidiaries (including, without limitation,
the rules and regulations of the NYSE) or (iv) any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any Subsidiary which
contravention, in the case of clauses (ii) or (iv), would have
a material adverse effect on the condition, financial or otherwise,
or the earnings, business or operations of the Company and the
Subsidiaries, taken as a whole; no consent, approval, authorization
or order of, or qualification with, any governmental or regulatory
board, body, authority or agency (including, without limitation,
the NYSE) or approval of the stockholders of the Company, is
required for the performance by the Company of its obligations
under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares and the registration of the
Shares under the Act;
(o) The financial statements
included in the Registration Statement, any Pre-Pricing Prospectus,
the Prospectus or any Permitted Free Writing Prospectus present
fairly in all material respects the financial position, results of
operations and cash flows of the Company and the Subsidiaries, in
each case at the dates and for the periods presented, and have been
prepared in compliance with the requirements of the Act and the
Exchange Act and in conformity with U.S. generally accepted
accounting principles applied on a consistent basis throughout the
periods presented, except as disclosed therein; since the
respective dates of such financial statements, there has been no
material adverse change in the condition or general affairs,
financial or otherwise, of the Company and the Subsidiaries taken
as a whole, other than as described in the Registration Statement,
the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any; and all disclosures contained in the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus
or any Permitted Free Writing Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Act, to
the extent applicable;
(p) BDO Seidman, L.L.P., whose
report on the consolidated financial statements of the Company and
the Subsidiaries is included in the Registration
Statement,
9
the Pre-Pricing Prospectus and the
Prospectus, are independent registered public accountants as
required by the Act and by the rules of the Public Company
Accounting Oversight Board;
(q) Ernst & Young LLP,
whose report on the consolidated financial statements of the
Company and the Subsidiaries is included in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus, are
independent registered public accountants as required by the Act
and by the rules of the Public Company Accounting Oversight
Board;
(r) subsequent to the respective
dates as of which information is given in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, (1) the Company
and the Subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (2) the
Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of
any kind on its capital stock other than ordinary and customary
dividends; and (3) there has not been any material change in
the capital stock, short-term debt or long-term debt of the Company
and the Subsidiaries, except in each case as described in or
contemplated by the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any;
(s) the Company and each of the
Subsidiaries have good and indefeasible title in fee simple to all
real property and good title to all personal property owned by them
which is material to the business of the Company and the
Subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or
such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company and the Subsidiaries; and any real property
and buildings held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings
by the Company and the Subsidiaries, in each case except as
described in or contemplated by the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any;
(t) the Company and the Subsidiaries
own or possess, or can acquire on reasonable terms, all material
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names currently employed by
them in connection with their business as described in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
other than those which if not so owned or possessed would not have
a material adverse effect on the condition, financial or otherwise,
or on the earnings, business or operations of the Company and the
Subsidiaries, taken as a
10
whole; and neither the Company nor
any of the Subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any
patent, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names currently employed by
them in connection with their business as described in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in any material adverse
change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and the
Subsidiaries, taken as a whole;
(u) no material labor dispute with
the employees of the Company or any of the Subsidiaries exists,
except as described in or contemplated by the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or, to the knowledge
of the Company, is imminent;
(v) the Company and each of the
Subsidiaries maintains insurance against such losses and risks and
in such amounts as are customary in the businesses in which they
are engaged; neither the Company nor any Subsidiary has within the
last five years been refused any insurance coverage sought or
applied for; and neither the Company nor any Subsidiary has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and
adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company and the
Subsidiaries, taken as a whole, except as described in or
contemplated by the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any;
(w) the Company and the Subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses as described in
the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
except for certificates, authorizations and permits which, if not
obtained, would not, individually or in the aggregate, have a
material adverse effect on the ability of the Company and the
Subsidiaries, taken as a whole, to conduct their businesses as
described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any; neither the Company nor any Subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a material adverse
change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and the
Subsidiaries, taken as a whole, except as described in or
contemplated by the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any;
11
(x) there are no legal or
governmental proceedings pending or, to the Company’s
knowledge, threatened, to which the Company or any of the
Subsidiaries is a party or to which any of the properties of the
Company or any of the Subsidiaries is subject that are required to
be described in the Registration Statement, the Pre-Pricing
Prospectuses or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement, the
Pre-Pricing Prospectuses or the Prospectus or to be filed as
exhibits to the Registration Statement or any Incorporated Document
that are not described or filed as required;
(y) the Company is not and, after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus
under the caption “Use of proceeds”, will not be an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended;
(z) the Company and the Subsidiaries
(i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“
Environmental Laws ”), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and the Subsidiaries, taken as a
whole
(aa) There are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material
adverse effect on the Company and the Subsidiaries, taken as a
whole
(bb) except as may be described in
the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company or to require the Company
to include such securities with the Shares registered pursuant to
the Registration Statement;
(cc) the Company has obtained for
the benefit of the Underwriters the agreement (a “ Lock-Up
Agreement ”), in the form set forth as Exhibit A
hereto, of each of its directors and “officers” (within
the meaning of Rule 16a-1(f) under the Exchange Act) and each
Selling Stockholder;
12
(dd) 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 authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(ee) the Company, the Subsidiaries
and the Company’s directors and officers, in their capacities
as such, are each in compliance in all material respects with all
applicable effective provisions of the Sarbanes-Oxley Act of 2002
and the rules and regulations of the Commission and the NYSE
promulgated thereunder;
(ff) the Company has not received
any notice from the NYSE regarding the delisting of the Common
Stock from the NYSE; and
(gg) the Company has not taken and
shall not take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to
facilitate the sale or resale of the Shares.
In addition, any certificate signed
by any officer of the Company or any of the Subsidiaries and
delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
4. Representations and Warranties
of the Selling Stockholders . Each Selling Stockholder,
severally and not jointly with the other Selling Stockholders,
represents and warrants to each of the Underwriters
that:
(a) each of this Agreement and the
Custody Agreement and Power of Attorney (the “ Custody
Agreement ”), dated December 14, 2005, between
Mellon Investor Services LLC, as custodian (the “
Custodian ”), and such Selling Stockholder has been
duly authorized (if the Selling Stockholder is a partnership),
executed and delivered by or on behalf of the Selling
Stockholder;
(b) The execution and delivery by
the Selling Stockholder of, and the performance by the Selling
Stockholder of its obligations under, this Agreement and the
Custody Agreement will not contravene (i) any provision of the
Selling Stockholder’s agreement of limited partnership (if
the Selling Stockholder is a partnership), (ii) any agreement
or other instrument binding upon the Selling Stockholder,
(iii) any law, rule or regulation applicable to the Selling
Stockholder (including, without limitation, the rules and
regulations of the NYSE) or (iv) any judgment, order or decree
of any governmental body, agency or court having jurisdiction over
the Selling Stockholder; no consent, approval, authorization or
order of, or qualification with, any governmental or
regulatory
13
board, body, authority or agency
(including, without limitation, the rules and regulations of the
NYSE) is required for the performance by the Selling Stockholder of
its obligations under this Agreement and the Custody Agreement,
except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the
Shares and the registration of the Shares under the Act;
(c) such Selling Stockholder has
duly and irrevocably authorized each of the Representatives of the
Selling Stockholders (whether acting alone or together), on behalf
of such Selling Stockholder, to execute and deliver this Agreement
and any other documents necessary or desirable in connection with
the transactions contemplated hereby or thereby and to deliver the
Shares to be sold by such Selling Stockholder pursuant to this
Agreement and receive payment therefor pursuant hereto;
(d) the Selling Stockholder has, and
on the date of purchase will have, valid title to the Shares to be
sold by the Selling Stockholder and the legal right, power and
capacity (if the Selling Stockholder is an individual) and
partnership power and authority (if the Selling Stockholder is a
partnership), to enter into this Agreement and the Custody
Agreement and to sell, transfer and deliver the Shares to be sold
by the Selling Stockholder;
(e) delivery of the Shares to be
sold by the Selling Stockholder against payment therefor pursuant
to this Agreement will pass title to such Shares to the several
Underwriters free and clear of any security interests, claims,
liens, equities and other encumbrances;
(f) such Selling Stockholder has
not, prior to the execution of this Agreement, offered or sold any
Shares by means of any “prospectus” (within the meaning
of the Act), or used any “prospectus” (within the
meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the then most recent Pre-Pricing
Prospectus;
(g) pursuant to the Custody
Agreement, certificates in negotiable form for the Shares to be
sold by such Selling Stockholder pursuant to this Agreement have
been placed in custody for the purpose of making delivery of such
Shares in accordance with this Agreement; such Selling Stockholder
agrees that (i) such Shares represented by such certificates
are for the benefit of, and coupled with and subject to the
interest of, the Custodian, the Representatives of the Selling
Stockholders, the Underwriters and the Company, (ii) the
arrangements made by such Selling Stockholder for custody and for
the appointment of the Custodian and the Representatives of the
Selling Stockholders by such Selling Stockholder are irrevocable,
and (iii) the obligations of such Selling Stockholder
hereunder shall not be terminated by operation of law, whether by
the death, disability or incapacity of such Selling Stockholder
(or, if such Selling Stockholder is not an individual, the
liquidation, dissolution, merger or consolidation of such Selling
Stockholder) or the occurrence of any other event (each, an “
Event ”); if an Event occurs before the delivery of
the Shares hereunder, certificates for the Shares shall be
delivered by the Custodian in accordance with the terms and
conditions of the Custody Agreement and this Agreement, and actions
taken by the Custodian and the Representatives of the
14
Selling Stockholders pursuant to
such Custody Agreement shall be as valid as if such Event had not
occurred, regardless of whether or not the Custodian or the
Representatives of the Selling Stockholders, or either of them,
shall have received notice thereof; and
(h) the Relevant Stockholder
Information (as defined below) with respect to such Selling
Stockholder does not contain and, as hereafter amended or
supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
In addition, any certificate signed
by any Selling Stockholder (or, with respect to any Selling
Stockholder that is not an individual, any officer of such Selling
Stockholder or of any of such Selling Stockholder’s
subsidiaries) or by any Representative of the Selling Stockholders
and delivered to the Underwriters or counsel for the Underwriters
in connection with the offering of the Shares shall be deemed to be
a representation and warranty by such Selling Stockholder, as to
matters covered thereby, to each Underwriter.
5. Certain Covenants of the
Company . The Company hereby agrees:
(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
states or other jurisdictions as you may designate and to maintain
such qualifications in effect so long as you may request 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); and to promptly advise you of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for offer or sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(b) to make available to the
Underwriters in New York City, as soon as practicable after this
Agreement becomes effective, and thereafter from time to time to
furnish to the Underwriters, as many 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) as the Underwriters may request
for the purposes contemplated by the Act; in case any Underwriter
is required to deliver (whether physically or through compliance
with Rule 172 under the Act or any similar rule), in connection
with the sale of the Shares, a prospectus after the nine-month
period referred to in Section 10(a)(3) of the Act, or after
the time a post-effective amendment to the Registration Statement
is required pursuant to Item 512(a) of Regulation S-K under
the Act, the Company will prepare, at its expense, promptly upon
request such amendment or amendments to the Registration Statement
and the Prospectus as may be necessary to permit compliance with
the requirements of Section 10(a)(3) of the Act or
Item 512(a) of Regulation S-K under the Act, as the case may
be;
15
(c) if, at the time this Agreement
is executed and delivered, it is necessary for a post-effective
amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the
Commission and become effective before the Shares may be sold, the
Company will use its best efforts to cause such post-effective
amendment or such Registration Statement to be filed and become
effective as soon as possible, and the Company will advise you
promptly and, if requested by you, will confirm such advice in
writing, (i) when such post-effective amendment or such
Registration Statement has become effective, and (ii) if Rule
430A under the Act is used, when the Prospectus is filed with the
Commission pursuant to Rule 424(b) under the Act (which the Company
agrees to file in a timely manner in accordance with such
Rules);
(d) to advise you promptly,
confirming such advice in writing, of any request by the Commission
for amendments or supplements to the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus or for additional information with respect
thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop
order suspending the effectiveness of the Registration Statement,
to use its best efforts to obtain the lifting or removal of such
order as soon as possible; to advise you promptly of any proposal
to amend or supplement the Registration Statement, any Pre-Pricing
Prospectus or the Prospectus, and to provide you and
Underwriters’ counsel copies of any such documents for review
and comment a reasonable amount of time prior to any proposed
filing and to file no such amendment or supplement to which you
shall object reasonably in writing other than any filing required
to comply with the Exchange Act;
(e) subject to Section 5(d)
hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement
requir
