Argon ST, Inc.
Shares of Common Stock
FRIEDMAN,
BILLINGS, RAMSEY & CO., INC.
as Representative of the several Underwriters
c/o Friedman, Billings, Ramsey & Co., Inc.
1001 19th Street North
Arlington, Virginia 22209
Argon
ST, Inc., a Delaware corporation (the “Company”), and
certain stockholders of the Company listed on Schedule I
hereto (the “Selling Stockholders”), each confirms its
agreement with each of the Underwriters listed on Schedule II
hereto (collectively, the “Underwriters”), for whom
Friedman, Billings, Ramsey & Co., Inc. is acting as
representative (in such capacity, the
“Representative”), with respect to (i) the sale by
the Company and the Selling Stockholders of an aggregate of
2,300,000 shares (the “Initial Shares”) of Common
Stock, par value $.01 per share, of the Company (“Common
Stock”) in the respective numbers of shares set forth
opposite the names of the Company and each such Selling Stockholder
in Schedule I hereto that is selling Initial Shares hereunder
(each, a “Firm Selling Stockholder”), and the purchase
by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock set forth opposite the
names of each of the Underwriters listed in Schedule II
hereto, and (ii) the grant of the option described in Section
1(b) hereof to purchase all or any part of 345,000 additional
shares of Common Stock to cover over-allotments (the “Option
Shares”), if any, in the respective numbers of shares of
Common Stock set forth opposite the names of each Selling
Stockholder in Schedule I hereto that is selling Option Shares
hereunder (each, an “Option Selling Stockholder” and,
together with the Firm Selling Stockholders, the “Selling
Stockholders”), to the Underwriters, acting severally and not
jointly, in the respective numbers of shares of Common Stock set
forth opposite the names of the Underwriters in Schedule II
hereto. The Initial Shares to be purchased by the Underwriters and
all or any part of the Option Shares subject to the option
described in Section l(b) hereof are hereinafter called,
collectively, the “Shares.”
The
Company understands that the Underwriters propose to make a public
offering of the Shares as soon as the Underwriters deem advisable
after this Underwriting Agreement (the “Agreement”) has
been executed and delivered.
The
Company has filed with the Securities and Exchange Commission (the
“Commission”), a registration statement on
Form S-3 (No. 333-128211) and a related preliminary
prospectus, for the registration of the Shares under the Securities
Act of 1933, as amended (the “Securities Act”), and the
rules and regulations thereunder (the “Securities Act
Regulations”). The Company has prepared and filed such
amendments to the registration statement and such amendments or
supplements to the related preliminary prospectus as may have been
required to the date hereof, and will file such additional
amendments or supplements as may hereafter be required. The
registration statement has been declared effective under the
Securities Act by the Commission. The registration statement as
amended at the time it was declared effective by the Commission
(and, if the Company files a post-effective amendment to such
registration statement that becomes effective prior to the Closing
Time (as defined below), such registration statement as so amended)
and including all information deemed to be a part of the
registration statement pursuant to incorporation by reference,
Rule 430A of the Securities Act Regulations or otherwise, is
hereinafter called the “Registration Statement.” Any
registration statement filed pursuant to Rule 462(b) of the
Securities Act Regulations is hereinafter called the
“Rule 462(b) Registration Statement,” and after
such filing the term “Registration Statement” shall
include the 462(b) Registration Statement. Each prospectus included
in the Registration Statement, or amendments thereof or supplements
thereto, before it was declared effective by the Commission under
the Securities Act, and any preliminary form of prospectus filed
with the Commission by the Company with the consent of the
Underwriters pursuant to Rule 424(a) of the Securities Act
Regulations (including all information incorporated by reference in
either such prospectus, is hereinafter called the
“Preliminary Prospectus.” The term
“Prospectus” means the final prospectus, as first filed
with the Commission pursuant to paragraph (1) or (4) of
Rule 424(b) of the Securities Act Regulations, and any amendments
thereof or supplements thereto. The Commission has not issued any
order preventing or suspending the use of any Preliminary
Prospectus.
The
term “Disclosure Package” means (i) the
Preliminary Prospectus, as most recently amended or supplemented
immediately prior to the date hereof, (ii) the Issuer Free
Writing Prospectuses (as defined below), if any, identified in
Schedule III hereto, (iii) any other Free Writing
Prospectus (as defined below) that the parties hereto shall
hereafter expressly agree to treat as part of the Disclosure
Package and (iv) the information set forth in Schedule IV
hereto. The Underwriters have informed the Company that the
Underwriters have or will orally provide the information set forth
on Schedule IV hereto to prospective purchasers of the Shares
prior to confirming sales of such Shares to such prospective
purchasers.
The
term “Issuer Free Writing Prospectus” means any issuer
free writing prospectus, as defined in Rule 433 of the
Securities Act Regulations.
The
term “Free Writing Prospectus” means any free writing
prospectus, as defined in Rule 405 of the Securities Act
Regulations.
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Each
Selling Stockholder has executed and delivered a Custody Agreement
and a Power of Attorney in the form attached hereto as
Exhibit A (collectively, the “Custody Agreement and
Power of Attorney”) pursuant to which each Selling
Stockholder party thereto has placed the Initial Shares and Option
Shares to be sold by it pursuant to this Agreement in custody and
appointed the persons designated therein as attorneys in fact (the
“Attorneys”) with the authority to execute and deliver
this Agreement on behalf of such Selling Stockholder and to take
certain other actions with respect thereto and hereto.
The
Company, each of the Selling Stockholders and the Underwriters
agree as follows:
(a) Initial Shares. Upon the basis of the warranties
and representations and other terms and conditions herein set
forth, at the purchase price per share of Common Stock of $27.55,
the Company agrees to sell to the Underwriters the number of
Initial Shares set forth in Schedule I opposite its name and
each Selling Stockholder agrees to sell to the Underwriters the
number of Initial Shares set forth in Schedule I opposite such
Selling Stockholder’s name, and each Underwriter agrees,
severally and not jointly, to purchase from the Company and the
Firm Selling Stockholders the number of Initial Shares set forth in
Schedule II opposite such Underwriter’s name, plus any
additional number of Initial Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 8 hereof, subject in each case, to such adjustments
among the Underwriters as the Representative in its sole discretion
shall make to eliminate any sales or purchases of fractional
shares.
(b) Option Shares . In addition, upon the basis of the
warranties and representations and other terms and conditions
herein set forth, at the purchase price per share of Common Stock
set forth in paragraph (a) above, each Option Selling
Stockholder hereby grants an option to the Underwriters, acting
severally and not jointly, to purchase from each Option Selling
Stockholder, all or any part of the Option Shares, plus any
additional number of Option Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 8 hereof. The option hereby granted will expire
30 days after the date hereof and may be exercised in whole or
in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering
and distribution of the Initial Shares upon notice by the
Representative to the Company and the Attorneys setting forth the
number of Option Shares as to which the several Underwriters are
then exercising the option and the time and date of payment and
delivery for such Option Shares. Any such time and date of delivery
(an “Option Closing Time”) shall be determined by the
Representative, but shall not be later than three (3) full
business days (or earlier, without the consent of the Company, than
two full business days) after the exercise of such option, nor in
any event prior to the Closing Time, as hereinafter defined. If the
option is exercised as to all or any portion of the Option Shares,
each Option Selling Stockholder will sell that
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proportion of
the total number of Option Shares then being purchased which the
number of Option Shares set forth in Schedule I opposite the
name of such Option Selling Stockholder bears to the total number
of Option Shares, and each of the Underwriters, acting severally
and not jointly, will purchase that proportion of the total number
of Option Shares then being purchased which the number of Initial
Shares set forth in Schedule II opposite the name of such
Underwriter bears to the total number of Initial Shares, plus any
additional number of Option Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 8 hereof, subject in each case to such adjustments
among the Underwriters as the Representative in its sole discretion
shall make to eliminate any sales or purchases of fractional
shares.
(a) Initial Shares . The Initial Shares to be purchased
by each Underwriter hereunder, in definitive form, and in such
authorized denominations and registered in such names as the
Representative may request upon at least forty-eight hours’
prior notice to the Company and the Firm Selling Stockholders shall
be delivered by or on behalf of the Company and the Firm Selling
Stockholders to the Representative, including, at the option of the
Representative, through the facilities of The Depository Trust
Company (“DTC”) for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the
account specified to the Representative by the Company and each of
the Firm Selling Stockholders, upon at least forty-eight
hours’ prior notice. The Company will cause the certificates
representing the Initial Shares to be made available for checking
and packaging not later than 1:00 p.m. New York City time on the
business day prior to the Closing Time (as defined below) with
respect thereto at the office of the Representative, 1001 19
th Street North, Arlington, Virginia 22209, or at
the office of DTC or its designated custodian, as the case may be
(the “Designated Office”). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on the
third (fourth, if pricing occurs after 4:30 p.m., New York City
time) business day after the date hereof (unless another time and
date shall be agreed to by the Representative and the Company). The
time and date at which such payment and delivery are actually made
is hereinafter sometimes called the “Closing
Time”.
(b) Option Shares . Any Option Shares to be purchased
by each Underwriter hereunder, in definitive form, and in such
authorized denominations and registered in such names as the
Representative may request upon at least forty-eight hours’
prior notice to the Company and the Option Selling Stockholders
shall be delivered by or on behalf of the Option Selling
Stockholders to the Representative, including, at the option of the
Representative, through the facilities of DTC for the account of
such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified to the
Representative by each of the Option Selling Stockholders, upon at
least forty-eight hours’ prior notice. The Company will cause
the certificates representing the Option Shares to be made
available for checking and packaging not later than 1:00 p.m. New
York City time on the
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business day
prior to the Option Closing Time with respect thereto at the
Designated Office. The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on the date specified by
the Representative in the notice given by the Representative to the
Company of the Underwriters’ election to purchase such Option
Shares or on such other time and date as the Company and the
Representative may agree upon in writing.
3.
Representations and Warranties of the Company and the Selling
Stockholders :
The Company
represents and warrants to the Underwriters as of the date hereof,
as of the Closing Time and as of any Option Closing Time (if any),
and agree with each Underwriter that:
(a) the
Company has an authorized capitalization as set forth in both the
Prospectus and the Disclosure Package; the outstanding shares of
capital stock of the Company and each subsidiary of the Company
(each, a “Subsidiary”) have been duly and validly
authorized and issued and are fully paid and non-assessable, and
all of the outstanding shares of capital stock of the Subsidiaries
are directly or indirectly owned of record and beneficially by the
Company; except as disclosed in both the Prospectus and the
Disclosure Package and, with respect to the Disclosure Package
only, except for options to purchase 481,900 shares of Common Stock
granted to employees and directors after November 11, 2005 and
prior to the date hereof, there are no outstanding
(i) securities or obligations of the Company or any of the
Subsidiaries convertible into or exchangeable for any capital stock
of the Company or any such Subsidiary, (ii) warrants, rights
or options to subscribe for or purchase from the Company or any
such Subsidiary any such capital stock or any such convertible or
exchangeable securities or obligations, or (iii) obligations
of the Company or any such Subsidiary to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligation, or any such warrants, rights or options;
(b) each of
the Company and the Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its respective jurisdiction of incorporation with full corporate
power and authority to own its respective properties and to conduct
its respective businesses as described in each of the Registration
Statement, the Prospectus and the Disclosure Package, and, in the
case of the Company, to execute and deliver this Agreement and to
consummate the transactions contemplated herein;
(c) the
Company and all of the Subsidiaries are duly qualified or licensed
and are in good standing in each jurisdiction in which they conduct
their respective businesses or in which they own or lease real
property or otherwise maintain an office and in which the failure,
individually or in the aggregate, to be so qualified or licensed
would not reasonably be expected to have a material adverse effect
on the assets, business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and
the Subsidiaries taken as a whole, (any such effect or change,
where
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the context so
requires, is hereinafter called a “Material Adverse
Effect” or “Material Adverse Change”); except as
disclosed in both the Prospectus and the Disclosure Package, no
Subsidiary is prohibited or restricted, directly or indirectly,
from paying dividends to the Company, or from making any other
distribution with respect to such Subsidiary’s capital stock
or from repaying to the Company or any other Subsidiary any amounts
which may from time to time become due under any loans or advances
to such Subsidiary from the Company or such other Subsidiary, or
from transferring any such Subsidiary’s property or assets to
the Company or to any other Subsidiary; other than as disclosed in
both the Prospectus and the Disclosure Package, the Company does
not own, directly or indirectly, any capital stock or other equity
securities of any other corporation or any ownership interest in
any partnership, joint venture or other association;
(d) the
Company and the Subsidiaries are in compliance in all material
respects with all applicable laws, rules, regulations, orders,
decrees and judgments, including those relating to transactions
with affiliates;
(e) neither
the Company nor any Subsidiary is in breach of or in default under
(nor has any event occurred which with notice, lapse of time, or
both would constitute a breach of, or default under), its
respective organizational documents, or in the performance or
observance of any obligation, agreement, covenant or condition
contained in any license, indenture, mortgage, deed of trust, loan
or credit agreement or other agreement or instrument to which the
Company or any Subsidiary is a party or by which any of them or
their respective properties is bound, except for such breaches or
defaults which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect;
(f) the
execution, delivery and performance of this Agreement, and
consummation of the transactions contemplated herein will not
(A) conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice, lapse of
time, or both would constitute a breach of, or default under),
(i) any provision of the organizational documents of the
Company or any Subsidiary, or (ii) any provision of any
license, indenture, mortgage, deed of trust, loan or credit
agreement or other agreement or instrument to which the Company or
any Subsidiary is a party or by which any of them or their
respective properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any
Subsidiary, except in the case of this clause (ii) for such
breaches or defaults which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; or (B) result in the creation or imposition of any
lien, charge, claim or encumbrance upon any property or asset of
the Company or any Subsidiary;
(g) this
Agreement has been duly authorized, executed and delivered by the
Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency,
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reorganization,
moratorium or similar laws affecting creditors’ rights
generally, and by general equitable principles, and except to the
extent that the indemnification and contribution provisions of
Section 9 hereof may be limited by federal or state securities
laws and public policy considerations in respect
thereof;
(h) no
approval, authorization, consent or order of or filing with any
federal, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the
Company’s execution, delivery and performance of this
Agreement, its consummation of the transactions contemplated
herein, and its sale and delivery of the Shares, other than
(i) such as have been obtained, or will have been obtained at
the Closing Time or the relevant Option Closing Time, as the case
may be, under the Securities Act and the Securities Exchange Act of
1934 (the “Exchange Act”) and the rules and regulations
thereunder (the “Exchange Act Regulations”), (ii) such
approvals as have been obtained in connection with the approval of
the listing of the Shares on the Nasdaq National Market,
(iii) any necessary qualification under the securities or blue
sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters and (iv) as may be required under
the By-laws, rules or regulations of the National Association of
Securities Dealers, Inc. (“NASD”);
(i) each of
the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary
filings required under any federal, state or local law, regulation
or rule, and has obtained all necessary authorizations, consents
and approvals from other persons, required in order to conduct
their respective businesses as described in both the Prospectus and
the Disclosure Package, except to the extent that any failure to
have any such licenses, authorizations, consents or approvals, to
make any such filings or to obtain any such authorizations,
consents or approvals would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; neither
the Company nor any of the Subsidiaries is required by any
applicable law to obtain accreditation or certification from any
governmental agency or authority in order to provide the products
and services which it currently provides or which it proposes to
provide as set forth in both the Prospectus and the Disclosure
Package, except for such accreditations or certifications as have
been obtained by the Company or its Subsidiaries and are in full
force and effect, and except to the extent the failure to have such
accreditations or certifications would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; neither the Company nor any of the Subsidiaries is in
violation of, in default under, or has received any written notice
regarding a possible violation, default or revocation of any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of the Subsidiaries the
effect of which would reasonably be expected to have a Material
Adverse Effect; and no such license, authorization, consent or
approval contains a materially burdensome restriction that is not
adequately disclosed in each of the Registration Statement, the
Prospectus and the Disclosure Package;
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(j) each of
the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under the
Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company are
contemplated or threatened, by the Commission; and the Company has
complied with any request on the part of the Commission for
additional information with respect to the Registration Statement
or any Rule 462(b) Registration Statement;
(k) the
Preliminary Prospectus when filed, and the Registration Statement
as of each effective date and as of the date hereof, complied or
will comply, and the Prospectus and any further amendments or
supplements to the Preliminary Prospectus, the Registration
Statement or the Prospectus will, when they become effective or are
filed with the Commission, as the case may be, comply in all
material respects with the requirements of the Securities Act and
the Securities Act Regulations;
(l) the
Registration Statement, as of each effective date and as of the
date hereof, did not, does not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and the Preliminary Prospectus does not,
and the Prospectus or any amendment or supplement thereto will not,
as of the applicable filing date, the date hereof and at the
Closing Time and on each Option Closing Time (if any), contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no warranty or representation with respect to any statement
contained in or omitted from the Registration Statement, the
Preliminary Prospectus or the Prospectus in reliance upon and in
conformity with the information concerning the Underwriters and
furnished in writing by or on behalf of the Underwriters through
the Representative to the Company expressly for use therein (that
information being limited to that described in the last sentence of
the first paragraph of Section 9(c) hereof);
(m) as of the
date hereof, the Company (i) is subject to the requirement to
file reports pursuant to Section 13 or Section 15(d) of the
Exchange Act, (ii) has filed all reports and other materials
required to be filed by Sections 13(a), 14 or 15(d) of the
Exchange Act during the preceding 12 months, (iii) has
filed an Annual Report on Form 10-K required under Section 13(a) or
15(d) under the Exchange Act for its most recently completed fiscal
year; (iv) is not, and during the past three years was not
(nor was any predecessor), (A) a blank check company as
defined in Rule 419(a)(2) of the Securities Act Regulations,
(B) a shell company, other than a business combination related
shell company, each as defined in Rule 405 of the Securities
Act Regulations, or (C) a registrant for an offering of penny
stock as defined in Rule 3a51-1 of the Exchange Act
Regulations, and (v) makes its periodic and current reports
filed pursuant to Section 13 or Section 15(d) of the Exchange
Act readily available and accessible on a web site maintained by or
for the Company and containing information about the Company;
each
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document
incorporated by reference in the Prospectus and the Disclosure
Package, when it became effective or was filed with the Commission,
as applicable, conformed in all material respects to the
requirements of the Securities Act and the Securities Act
Regulations, or the Exchange Act and the Exchange Act Regulations,
as applicable, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and any further documents so filed
and incorporated by reference in the Prospectus and the Disclosure
Package or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as
applicable, will conform in all material respects to the
requirements of the Securities Act and the Securities Act
Regulations, or the Exchange Act and the Exchange Act Regulations,
as applicable, and will not include 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, in the light of the circumstances under which they were
made, not misleading;
(n) on the
date of this Agreement, the Disclosure Package did not, and at the
time of each sale of Shares and at the Closing Time and each Option
Closing Time, the Disclosure Package will not, contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no warranty or
representation with respect to any statement contained in or
omitted from the Disclosure Package in reliance upon and in
conformity with the information concerning the Underwriters and
furnished in writing by or on behalf of the Underwriters through
the Representatives to the Company expressly for use therein (that
information being limited to that described in the last sentence of
the first paragraph of Section 9(c) hereof);
(o) each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offering and
sale of the Shares did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, including any
document incorporated by reference therein that has not been
superseded or modified;
(p) the
Company is eligible to use Free Writing Prospectuses in connection
with this offering pursuant to Rules 164 and 433 under the
Securities Act; any Free Writing Prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
Regulations has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the
Securities Act Regulations; and each Free Writing Prospectus that
the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act Regulations or that was prepared by
or on behalf of or used by the Company complies or will comply in
all material respects with the requirements of the Securities Act
and the Securities Act Regulations;
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(q) except
for the Issuer Free Writing Prospectuses identified in
Schedule III hereto, if any, and any electronic road show
relating to the public offering of Shares contemplated herein, the
Company has not prepared, used or referred to, and will not,
without the Representative’s prior consent, prepare, use or
refer to, any Free Writing Prospectus;
(r) the
Preliminary Prospectus, the Prospectus and any Issuer Free Writing
Prospectus (to the extent any such Issuer Free Writing Prospectus
was required to be filed with the Commission) delivered to the
Underwriters for use in connection with the public offering of
Shares contemplated herein have been and will be identical to the
versions of such documents created to be transmitted to the
Commission for filing via the Electronic Data Gathering Analysis
and Retrieval System (“EDGAR”), except to the extent
permitted by Regulation S-T;
(s) there are
no actions, suits, proceedings, inquiries or investigations
pending, or to the knowledge of the Company threatened, against the
Company or any Subsidiary or any of their respective officers and
directors or to which the properties, assets or rights of any such
entity are subject, at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission,
board, body, authority, arbitral panel or agency which would
reasonably be expected to result in a judgment, decree, award or
order having a Material Adverse Effect;
(t) the
consolidated financial statements, including the notes thereto,
included in (or incorporated by reference into) each of the
Registration Statement, the Prospectus and the Disclosure Package
present fairly the consolidated financial position of the entities
to which such financial statements relate (the “Covered
Entities”) as of the dates indicated and the consolidated
results of operations and changes in financial position and cash
flows of the Covered Entities for the periods specified; such
financial statements have been prepared in conformity with
generally accepted accounting principles as applied in the United
States and on a consistent basis during the periods involved and in
accordance with Regulation S-X promulgated by the Commission;
the financial statement schedules included in (or incorporated by
reference into) the Registration Statement and the amounts in both
the Prospectus and the Disclosure Package under the captions
“Summary — Summary Financial Data” and
“Selected Historical Consolidated Financial Data”
fairly present the information shown therein and have been compiled
on a basis consistent with the financial statements included in
each of the Registration Statement, the Prospectus and the
Disclosure Package; no other financial statements or supporting
schedules are required to be included in the Registration
Statement, the Prospectus or the Disclosure Package; the unaudited
pro forma financial information included in each of the
Registration Statement, the Prospectus and the Disclosure Package
complies as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Securities
Act Regulations, and management of the Company believes that the
assumptions underlying the pro forma adjustments are reasonable;
such pro forma adjustments have been properly applied to the
historical amounts in the compilation of the information and such
information fairly presents with
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respect to the
Company and the Subsidiaries, the information purported to be shown
therein at the respective dates and for the respective periods
specified; and no other pro forma financial information is required
to be included in (or incorporated by reference into) the
Registration Statement, the Prospectus or the Disclosure
Package;
(u) Grant
Thornton LLP, whose reports on the audited consolidated financial
statements of the Company and the Subsidiaries are filed with the
Commission as part of each of the Registration Statement, the
Prospectus and the Disclosure Package or are incorporated by
reference therein are and were during the periods covered by its
reports, independent registered public accountants as required by
the Securities Act, the Securities Act Regulations, the Exchange
Act and the Exchange Act Regulations;
(v) subsequent
to the respective dates as of which information is given in each of
the Registration Statement, the Prospectus and the Disclosure
Package, and except as may be otherwise stated in such documents,
there has not been (A) any Material Adverse Change or any
development that would reasonably be expected to result in a
Material Adverse Change, whether or not arising in the ordinary
course of business, (B) any transaction that is material to
the Company and the Subsidiaries taken as a whole, contemplated or
entered into by the Company or any of the Subsidiaries,
(C) any obligation, contingent or otherwise, directly or
indirectly incurred by the Company or any Subsidiary that is
material to the Company and Subsidiaries taken as a whole or (D)
any dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock;
(w) the
Shares conform in all material respects to the description thereof
included in (or incorporated by reference into) the Registration
Statement, the Prospectus and the Disclosure Package;
(x) except as
disclosed in both the Prospectus and the Disclosure Package, there
are no persons with registration or other similar rights to have
any equity or debt securities, including securities which are
convertible into or exchangeable for equity securities, registered
pursuant to the Registration Statement or otherwise registered by
the Company under the Securities Act;
(y) the
Shares have been duly authorized and, when issued and duly
delivered against payment therefor as contemplated by this
Agreement, will be validly issued, fully paid and non-assessable,
free and clear of any pledge, lien, encumbrance, security interest
or other claim, and the issuance and sale of the Shares by the
Company is not subject to preemptive or other similar rights
arising by operation of law, under the organizational documents of
the Company or under any agreement to which the Company or any
Subsidiary is a party or otherwise;
(z) the
Shares have been approved for quotation on the Nasdaq National
Market, subject to official notice of issuance; the Company has
taken all necessary actions to ensure that, upon and at all times
after Nasdaq shall have approved the Shares for inclusion, it will
be in compliance with all applicable corporate
governance
-11-
requirements
set forth in the NASD’s Nasdaq Marketplace Rules that are
then in effect and is taking such steps as are necessary to ensure
that it will be in compliance with other applicable corporate
governance requirements set forth in the NASD’s Nasdaq
Marketplace Rules not currently in effect upon the effectiveness of
such requirements;
(aa) the
Company has not taken, and will not take, directly or indirectly,
any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(bb) neither
the Company nor any of its affiliates (i) is required to
register as a “broker” or “dealer” in
accordance with the provisions of the Exchange Act, the Exchange
Act Regulations, or (ii) directly, or indirectly through one
or more intermediaries, controls or has any other association with
(within the meaning of Article I of the By-laws of the NASD)
any member firm of the NASD;
(cc) the
Company has not relied upon the Representative or legal counsel for
the Representative for any legal, tax or accounting advice in
connection with the offering and sale of the Shares;
(dd) any
certificate of the Company or any Subsidiary signed by any officer
of the Company or any Subsidiary delivered to the Representative or
to counsel for the Underwriters pursuant to or in connection with
this Agreement shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered
thereby;
(ee) the form
of certificate used to evidence the Common Stock complies in all
material respects with all applicable statutory requirements, with
any applicable requirements of the organizational documents of the
Company and the requirements of the Nasdaq National
Market;
(ff) the
Company and the Subsidiaries have good and marketable title in fee
simple to all real property, if any, and good title to all personal
property owned by them, in each case free and clear of all liens,
security interests, pledges, charges, encumbrances, mortgages and
defects, except such as are disclosed in both the Prospectus and
the Disclosure Package or such as do not materially and adversely
affect the value of such property and do not interfere with the use
made or 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 or any Subsidiary are held under valid, existing and
enforceable leases, with such exceptions as are disclosed in both
the Prospectus and the Disclosure Package or are not material and
do not interfere with the use made or proposed to be made of such
property and buildings by the Company or such
Subsidiary;
(gg) the
Company and its Subsidiaries are, and at all times prior were,
(i) in compliance with any and all applicable federal, state,
local and foreign laws, regulations, ordinances, rules, orders,
judgments, decrees, permits or other legal requirements
relating
-12-
to the
protection of human health and safety, the environment, natural
resources, petroleum or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”),
which compliance includes obtaining, maintaining and complying with
all permits and authorizations and approvals required by
Environmental Laws to conduct their respective businesses and
(ii) have not received notice of nor do they otherwise have
knowledge of any actual or potential liability for the
investigation or remediation of any disposal or release by the
Company or any Subsidiary of petroleum, hazardous or toxic
substances or wastes, pollutants or contaminants, except in the
case of clause (i) or (ii) where such non-compliance with
or liability under Environmental Laws would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect; and neither the Company nor any of its Subsidiaries has
been named as a “potentially responsible party” under
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or any other similar
Environmental Law, except with respect to any matters that would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. None of the Company and its
Subsidiaries (A) is a party to any proceeding under
Environmental Laws in which a governmental authority is also a
party, other than such proceedings regarding which it is believed
no monetary penalties of $100,000 or more will be imposed, and
(B) anticipates material capital expenditures relating to
Environmental Laws;
(hh) the
descriptions in each of the Registration Statement, the Prospectus
and the Disclosure Package of the legal or governmental
proceedings, contracts, leases and other legal documents therein
described present fairly the information required to be described
by the Securities Act or the Securities Act Regulations, and there
are no legal or governmental proceedings, contracts, leases, or
other documents of a character required to be described in the
Registration Statement, the Prospectus or the Disclosure Package or
required to be filed as exhibits to the Registration Statement
which are not described or filed as required; all agreements
between the Company or any of the Subsidiaries and third parties
expressly referenced in both the Prospectus and the Disclosure
Package are legal, valid and binding obligations of the Company or
one or more of the Subsidiaries, enforceable against the Company or
its Subsidiaries, as applicable, in accordance with their
respective terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and by
general equitable principles;
(ii) except
as disclosed in the Registration Statement, the Prospectus and the
Disclosure Package, the Company and each Subsidiary owns or
possesses adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights, software and
design licenses, trade secrets, manufacturing processes, other
intangible property rights and know-how (collectively
“Intangibles”) necessary to entitle the Company and
each Subsidiary to conduct its business as described in the
Prospectus, and neither the Company nor any Subsidiary has received
notice of infringement of or conflict with (and neither the Company
nor any Subsidiary knows of any such infringement of or conflict
with) asserted rights of others with respect to any Intangibles
which would reasonably be expected to have a Material Adverse
Effect;
-13-
(jj) (x) the
Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under
the Exchange Act Regulations), which (i) are designed to
ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by
others within those entities, particularly during the periods in
which the periodic reports required under the Exchange Act are
being prepared, (ii) have been evaluated for effectiveness as
of the end of the last fiscal period covered by the Registration
Statement, and (iii) are effective in all material respects to
perform the functions for which they were established,
(y) there is no material weakness in the design or operation
of the Company’s internal controls over financial reporting
(as such term is defined in Rule 13a-15(f) under the Exchange
Act Regulations) that adversely affects the Company’s ability
to record, process, summarize and report financial information to
management and the Board of Directors and there are no significant
deficiencies that, individually or in the aggregate, could result
in such a material weakness, and (z) the Company is not aware
of any fraud, whether or not material, that involves management or
other employees who have a significant role in the Company’s
internal control over financial reporting. Since the most recent
evaluation of the Company’s disclosure controls and
procedures described above, there have been no significant changes
in internal control over financial reporting or in other factors
that could significantly affect internal control over financial
reporting;
(kk) the
Company and each of the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles as applied in the United States and
to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences;
(ll) each of
the Company and the Subsidiaries has filed on a timely basis
(including in accordance with any applicable extensions) all
necessary federal, state, local and foreign income and franchise
tax returns required to be filed through the date hereof and have
paid all taxes shown as due thereon; and no tax deficiency has been
asserted against any such entity, nor does any such entity know of
any tax deficiency which is likely to be asserted against any such
entity which, if determined adversely to any such entity, would
reasonably be expected to have a Material Adverse Effect; all
material tax liabilities are adequately provided for on the
respective books of such entities;
(mm) each of
the Company and the Subsidiaries maintains insurance (issued by
insurers of recognized financial responsibility) of the types and
in the amounts generally deemed adequate for their respective
businesses and consistent with insurance coverage maintained by
similar companies in similar businesses, including, but not limited
to,
-14-
insurance
covering real and personal property owned or leased by the Company
and the Subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of
which insurance is in full force and effect;
(nn) neither
the Company nor any of the Subsidiaries is in violation, or has
received notice of any violation by the Company or any Subsidiary
with respect to, any applicable environmental, safety or similar
law applicable to the business of the Company or any of the
Subsidiaries; the Company and the Subsidiaries have received all
permits, licenses or other approvals required of them under
applicable federal and state occupational safety and health and
environmental laws and regulations to conduct their respective
businesses, and the Company and the Subsidiaries are in compliance
with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure
to receive required permits, licenses or other approvals or failure
to comply with the terms and conditions of such permits, licenses
or approvals which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect;
(oo) neither
the Company nor any Subsidiary is in violation of or has received
notice of any violation with respect to any federal or state law
relating to discrimination in the hiring, promotion or pay of
employees, nor any applicable federal or state wages and hours law,
the violation of any of which would reasonably be expected to have
a Material Adverse Effect;
(pp) the
Company and each of the Subsidiaries are in compliance in all
material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ERISA”); no “reportable event” (as
defined in ERISA) has occurred with respect to any “pension
plan” (as defined in ERISA) for which the Company or any of
the Subsidiaries would have any liability; the Company and each of
the Subsidiaries have not incurred and do not expect to incur
liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan”
or (ii) Section 412 or 4971 of the Internal Revenue Code
of 1986, as amended, including the regulations and published
interpretations thereunder (“Code”); and each
“pension plan” for which the Company and each of its
Subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such
qualification;
(qq) neither
the Company nor any of the Subsidiaries nor any officer or director
purporting to act on behalf of the Company or any of the
Subsidiaries has at any time (i) made any contributions to any
candidate for political office, or failed to disclose fully any
such contributions, in violation of applicable law, (ii) made
any payment to any state, federal or foreign governmental officer
or official, or other person charged with similar public or
quasi-public duties, other than payments required or allowed by
applicable law or (iii) engaged in any transactions,
maintained any bank account or used
-15-
any corporate
funds except for transactions, bank accounts and funds which have
been and are reflected in the normally maintained books and records
of the Company and the Subsidiaries;
(rr) except
as otherwise disclosed in both the Prospectus and the Disclosure
Package, there are no outstanding loans, extensions of credit,
advances or guarantees of indebtedness by the Company or any of the
Subsidiaries to or for the benefit of any of the officers or
directors of the Company or any of the Subsidiaries or any of the
members of the families of any of them;
(ss) neither
the Company nor any of the Subsidiaries nor, to the knowledge of
the Company, any employee or agent of the Company or any of the
Subsidiaries, has made any payment of funds of the Company or of
any Subsidiary or received or retained any funds in violation of
any law, rule or regulation or of a character required to be
disclosed in the Prospectus or the Disclosure Package;
(tt) all
securities issued by the Company, any of the Subsidiaries or any
trusts established by the Company or any Subsidiary, have been
issued and sold in compliance with (i) all applicable federal
and state securities laws, (ii) the laws of the applicable
jurisdiction of incorporation of the issuing entity, and
(iii) to the extent applicable to the issuing entity, the
requirements of the Nasdaq National Market;
(uu) in
connection with the offering contemplated by this Agreement, the
Company has not offered and will not offer its Common Stock or any
other securities convertible into or exchangeable or exercisable
for Common Stock in a manner in violation of the Securities Act;
and the Company has not distributed and will not distribute any
offering material in connection with the offer and sale of the
Shares, except for the Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus or the Registration
Statement;
(vv) the
Company has complied and will comply with all the provisions of
Florida Statutes, Section 517.075 (Chapter 92-198, Laws
of Florida); and neither the Company nor any of the Subsidiaries or
affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba;
(ww) the
Company has not incurred any liability for any finder’s fees
or similar payments in connection with the transactions herein
contemplated;
(xx) no
relationship, direct or indirect, exists between or among the
Company or any of the Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any of the Subsidiaries on the other hand, which is
required by the Securities Act and the Securities Act Regulations
to be described in the Registration Statement, the Prospectus or
the Disclosure Package and which is not so described;
-16-
(yy) neither
the Company nor any of the Subsidiaries is and, after giving effect
to the offering and sale of the Shares, will be an
“investment company” or an entity
“controlled” by an “investment company”, as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(zz) none of
the Company nor any of the Subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of
such entities is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), including,
without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of
an offer, payment, promise to pay or authorization of the payment
of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA and the Company and the Subsidiaries and, to the knowledge of
the Company, their affiliates have conducted their businesses in
compliance with the FCPA;
(aaa) neither
the Company nor any of its Subsidiaries, nor, to the
Company’s knowledge, any of its affiliates or any
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