Exhibit 1.1
Alliance Imaging, Inc.
8,000,000 Shares (1)
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
November 20, 2006
To the Representatives
named in Schedule I hereto
of the several Underwriters
named in Schedule III hereto
Ladies and Gentlemen:
The stockholders of Alliance
Imaging, Inc., a Delaware corporation (the “Company”),
named in Schedule II hereto (the “Selling
Stockholders”) propose to sell to the several underwriters
named in Schedule III hereto (the “Underwriters”),
for whom you (the “Representatives”) are acting as
representatives, the number of shares of common stock, $0.01 par
value per share (“Common Stock”), of the Company set
forth in Schedule II hereto (said shares to be sold by the Selling
Stockholders collectively being hereinafter called the
“Underwritten Securities”). The Selling
Stockholders also propose to grant to the Underwriters an option to
purchase up to the number of additional shares of Common Stock set
forth in Schedule II to cover over-allotments, if any (the
“Option Securities”; the Option Securities, together
with the Underwritten Securities, being hereinafter called the
“Securities”). To the extent there are no
additional Underwriters listed on Schedule III other than you,
the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires.
In addition, to the extent that there is not more than one Selling
Stockholder named in Schedule II, the term Selling Stockholder
shall mean either the singular or plural. The use of the
neuter in this Agreement shall include the feminine and masculine
wherever appropriate. Any reference herein to the
Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange
Act on or before the Effective Date of the Registration Statement
or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 20 hereof.
(1)
Plus an option to purchase from the Selling Stockholders, up to
1,200,000 additional Securities to cover
over-allotments.
1.
Representations and Warranties .
(i)
The Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1.
(a)
The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related Base
Prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, has become
effective. The Company has filed with the Commission, as part
of an amendment to the Registration Statement or pursuant to Rule
424(b), one or more preliminary prospectus supplements relating to
the Securities, each of which has previously been furnished to
you. The Company will file with the Commission a Final
Prospectus relating to the Securities in accordance with Rule
424(b). As filed, such final prospectus supplement shall
contain all information required by the Act and the rules
thereunder, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1)(x).
(b)
On the Effective Date, the Registration Statement did, and when the
Final Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date (as defined herein) and on any date on
which Option Securities are purchased, if such date is not the
Closing Date (a “settlement date”), the Final
Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date and any settlement date,
the Final Prospectus (together with any supplement thereto) will
not include any 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; provided , however , that the
Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it
being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
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(c)
(i) At the Execution Time, the Disclosure Package and the price to
the public, the number of Underwritten Securities and the number of
Option Securities to be included on the cover page of the Final
Prospectus when taken together as a whole and (ii) each electronic
road show with the Disclosure Package and the price to the public,
the number of Underwritten Securities and the number of Option
Securities to be included on the cover page of the Final Prospectus
when taken together as a whole, does 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.
The preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(d)
(i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)) of
the Securities and (ii) as of the Execution Time (with such date
being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.
(e)
Each Issuer Free Writing Prospectus prepared and filed pursuant to
Section 5(b) hereto does not include any information that conflicts
with the information contained in the Registration Statement,
including any document incorporated therein by reference and any
prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply
to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8 hereof.
(f)
Each of the Company and its subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized with
full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus, and
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires
such qualification, except in each case as would not reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from the transaction in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement
thereto).
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(g)
All the outstanding shares of capital stock of each subsidiary have
been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Disclosure
Package and the Prospectus, all outstanding shares of capital stock
of the subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(h)
There is no franchise, contract or other document of a character
required to be described in the Registration Statement, the
Disclosure Package or the Final Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required; and
the statements in the Preliminary Prospectus and the Final
Prospectus under the headings “Material U.S. Federal Income
Tax Consequences to Non-US. Holders”,
“Regulation” and “Reimbursement” insofar as
such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or
proceedings.
(i)
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Disclosure Package and the Final Prospectus,
will not be an “investment company” as defined in the
Investment Company Act of 1940, as amended.
(j)
No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with
the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Disclosure Package and the Final
Prospectus.
(k)
Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, (i) the charter or by-laws of
the Company or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, except in the case
of clauses (ii) and (iii) as would not reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from the
transaction in the ordinary course of business, except as set forth
in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
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(l)
Except as set forth in the Disclosure Package and the Final
Prospectus, no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement.
(m)
The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the
Preliminary Prospectus, the Final Prospectus and the Registration
Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The selected
financial data set forth under the caption “Selected
Financial Information” in the Preliminary Prospectus, the
Final Prospectus and Registration Statement fairly present, on the
basis stated in the Preliminary Prospectus, the Final Prospectus
and the Registration Statement, the information included
therein.
(n)
No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property is
pending or, to the knowledge of the Company, threatened that
(i) would reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of
any of the transactions contemplated hereby or (ii) would
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto).
(o)
Each of the Company and each of its subsidiaries owns or leases all
such properties as are necessary to the conduct of its operations
as presently conducted, except as would not reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from the transaction in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement
thereto).
(p)
Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or bylaws, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound
or to which its property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as applicable except
in the case of clauses (ii) and (iii) as would not
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reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from the
transaction in the ordinary course of business, except as set forth
in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(q)
Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Disclosure
Package and the Final Prospectus, are independent public
accountants with respect to the Company within the meaning of the
Act and the applicable published rules and regulations
thereunder.
(r)
[Intentionally Omitted]
(s)
The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto) and has paid all
taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(t)
No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or is threatened or imminent, and
the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers,
that would have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement
thereto).
(u)
The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses
in which they are engaged.
(v)
No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock,
from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of
such
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subsidiary’s property or
assets to the Company or any other subsidiary of the Company,
except as described in or contemplated by the Disclosure Package
and the Final Prospectus (exclusive of any supplement
thereto).
(w)
The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, and neither the
Company nor any such 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 have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement
thereto).
(x)
The Company and each of its 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 and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and its subsidiaries’ internal controls over
financial reporting are effective and the Company and its
subsidiaries are not aware of any material weakness in their
internal controls over financial reporting.
(y)
The Company and its subsidiaries maintain “disclosure
controls and procedures” (as such term is defined in Rule
13a-15(e) under the Exchange Act); such disclosure controls and
procedures are effective.
(z)
The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(aa)
The Company and its subsidiaries have not violated any foreign,
federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), or any provision of the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), except for violations which, individually or
in the aggregate, would not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
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(bb)
There is and has been no failure on the part of the Company and any
of the Company’s directors or officers, in their capacities
as such, to comply with any provision of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith (the “Sarbanes-Oxley Act”), including Section
402 relating to loans and Sections 302 and 906 relating to
certifications.
(cc)
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or
has taken any action, directly or indirectly, that would result in
a violation by such persons of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder (the
“FCPA”), including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA; and the Company, its subsidiaries and,
to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith.
(dd)
The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transaction Reporting Act of 1970, as amended and the money
laundering statutes of all jurisdictions and the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(ee)
Except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus, there are no material Medicare or
Medicaid recoupments or material recoupments of any third-party
payor (which for the avoidance of doubt excludes the
Company’s wholesale clientele, including, without limitation,
the Company’s hospital clients and medical group clients)
being sought, requested or claimed, or to the Company’s
knowledge, threatened against the Company or any of its
subsidiaries.
(ff)
To the Company’s knowledge, no individual with an ownership
or control interest, as defined in 42 U.S.C. Section 320a-3(a)(3),
in the Company or any of its subsidiaries, or any managing employee
of the Company or any of its subsidiaries, as defined in 42 U.S.C.
Section 1320a-5(b), is a person or entity excluded or excludible
from the Medicare program under 42 U.S.C. Sections 1320a7 or
1320a-7a or from any state Medicaid program.
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(gg)
Except in any case in which the failure to do so would not
reasonably be expected to result in a material adverse effect on
the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, and except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto), all reports, data, and information required to
be filed by the Company and its subsidiaries in connection with
federal Medicare and applicable state Medicaid programs have been
timely filed and are true and complete. There are no claims,
actions or appeals pending (and the Company and its subsidiaries
have not made any filing or submission that would result in any
claims, actions or appeals) before any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority (including governmental fiscal agents) with respect to
any state or federal Medicare or Medicaid reports or claims filed
by the Company or any of its subsidiaries on or before the date
hereof, or with respect to any disallowances by any regulatory
body, administrative agency, governmental body or other authority
(including governmental fiscal agents) in connection with any audit
or any claims that, if adversely determined, would have a material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of
any supplement thereto). Except as set forth in or contemplated by
the Prospectus (exclusive of any supplement thereto), no validation
review or program integrity review related to the Company or any of
its subsidiaries has been conducted by any regulatory body,
administrative agency, governmental body or other authority
(including governmental fiscal agents) in connection with federal
Medicare or state Medicaid programs within the past ten years
which, if determined adversely to the Company or any such
subsidiary, would reasonably be expected to result in a material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of
any supplement thereto), and no such reviews are scheduled, pending
or to the Company’s knowledge, threatened against or
affecting the Company or any of its subsidiaries.
(hh)
The Company and certain of its subsidiaries are consider to be
“Covered Entities,” as that term is defined in 45
C.F.R. § 160.103, and are covered by the HIPAA (as defined
below) Administrative Requirements codified at 45 C.F.R. Parts 160
and 162 (the “Transactions Rule”) and/or the HIPAA
Security and Privacy Requirements codified at 45 C.F.R. Parts 160
and 164 (the “Privacy and Security Rules”). The
Company, on its behalf and on behalf of any of its subsidiaries
subject to HIPAA, represents and warrants that it or they (i) are
currently compliant in all material respects with any and all of
the applicable requirements of HIPPA, including all requirements of
the Transactions Rule and the Privacy and Security Rules, and (ii)
are not subject to, and are not aware of any facts or
circumstances that could reasonably be expected to give rise to,
any civil or criminal penalty or any investigation, claim or
process by the Office of Civil Rights of the United States
Department of Health and Human Services (“OCR”) or any
other
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governmental agency enforcing HIPAA,
except in the case of (i) and (ii) above that would not be
reasonably expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto). For the purposes of this Agreement, HIPAA shall
mean the Administrative Simplification provisions of the Health
Insurance Portability and Accountability Act of 1996 (42 U.S.C.A.
§ 1320(d)-(d-8)) and all implementing regulations adopted in
connection therewith.
(ii)
Neither the Company nor, to the knowledge of the Company,
any director, officer, agent, employee, affiliate
or person acting on behalf of the Company is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”); and
the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each
Underwriter.
(ii)
Each Selling Stockholder represents and warrants to, and agrees
with, each Underwriter that:
(a)
The Securities to be sold by such Selling Stockholder hereunder are
certificated securities in registered form and are not held in any
securities account or by or through any securities intermediary
within the meaning of the Uniform Commercial Code as in effect in
the State of New York (“NY UCC”). Such Selling
Stockholder has, and on the Closing Date will have, full right,
power and authority to hold, sell, transfer and deliver the
Securities to be sold by such Selling Stockholder hereunder; and
upon each Underwriter acquiring possession of certificates
evidencing such Securities (or an agent’s acquiring
possession of such certificates on such Underwriter’s
behalf), together with stock powers duly indorsed either to the
several Underwriters or in blank by an effective indorsement, or
upon registration of the Securities in the name of the
several Underwriters, and payment of the purchase price therefor as
herein contemplated, such Underwriter will become a
“protected purchaser” of the Securities (as defined in
Section 8-303 of the NY UCC) and acquire its interests in such
Securities (including, without limitation, all rights that such
Selling Stockholder had or has the power to transfer in such
Securities) free of any adverse claim (as defined in Section
8-102(a)(1) of the NY UCC), provided that such Underwriter has no
notice of any adverse claim.
(b)
Such Selling Stockholder has not taken, directly or indirectly, any
action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
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(c)
[Intentionally Omitted]
(d)
No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by
such Selling Stockholder of the transactions contemplated herein,
except such as may have been obtained under the Act, the Exchange
Act or from the NASD and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals as have been obtained.
(e)
Neither the sale of the Securities being sold by such Selling
Stockholder nor the consummation of any other of the transactions
herein contemplated by such Selling Stockholder or the fulfillment
of the terms hereof by such Selling Stockholder will conflict with,
result in a breach or violation of, or constitute a default under
any law or the charter or by-laws of such Selling Stockholder or
the terms of any indenture or other agreement or instrument to
which such Selling Stockholder or, if applicable, any of its
subsidiaries is a party or bound, or any judgment, order or decree
applicable to such Selling Stockholder or, if applicable, any of
its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
such Selling Stockholder or, if applicable, any of its
subsidiaries.
(f)
The information in the Registration Statement, Disclosure Package
and the Final Prospectus under the caption “Selling
Stockholders” that was furnished by or on behalf of such
Selling Stockholder expressly for use in the Registration
Statement, Disclosure Package and the Final Prospectus does not
contain, and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading.
Any certificate signed by any
Selling Stockholder or any officer of any Selling Stockholder and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by such Selling Stockholder, as to
matters covered thereby, to each Underwriter.
2.
Purchase and Sale . (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Selling Stockholders agree, severally and not
jointly, to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Selling
Stockholders, at the purchase price set forth in Schedule I hereto,
the number of Underwritten Securities set forth opposite such
Underwriter’s name in Schedule III hereto.
(b)
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling
Stockholders named in Schedule II hereto hereby grant an option to
the several Underwriters to purchase, severally and not jointly, up
to the number of Option Securities set forth in Schedule
II
11
hereto at the same purchase price
per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in
part at any time on or before the 30th day after the date of the
Final Prospectus upon written or telegraphic notice by the
Representatives to the Company and such Selling Stockholders
setting forth the number of Option Securities as to which the
several Underwriters are exercising the option and the settlement
date. In the event that the Underwriters exercise less than
their full over-allotment option, the number of Option Securities
to be sold by each Selling Stockholder listed on Schedule II shall
be, as nearly as practicable, in the same proportion as the maximum
number of Option Securities to be sold by each Selling Stockholder
and the total number of Option Securities to be sold. The
number of Option Securities to be purchased by each Underwriter
shall be the same percentage of the total number of Option
Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject
to such adjustments as you in your absolute discretion shall make
to eliminate any fractional shares.
3.
Delivery and Payment . Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised
on or before the third Business Day immediately preceding the
Closing Date) shall be made on the date and at the time specified
in Schedule I hereto, or at such time on such later date not
more than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be
postponed by agreement among the Representatives, the Company and
the Selling Stockholders or as provided in Section 9 hereof
(such date and time of delivery and payment for the Securities
being herein called the “Closing Date”). Delivery
of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by
the several Underwriters through the Representatives of the
respective aggregate purchase prices of the Securities being sold
by the Selling Stockholders to or upon the order of the Selling
Stockholders by wire transfer payable in same-day funds to the
accounts specified the Selling Stockholders. Delivery of the
Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
Each Selling Stockholder will pay
all applicable state transfer taxes, if any, involved in the
transfer to the several Underwriters of the Securities to be
purchased by them from such Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved
in further transfers.
If the option provided for in
Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Selling Stockholders
named in Schedule II hereto will deliver the Option Securities
(at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after
exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the
order of the Selling Stockholders named in Schedule II by wire
transfer payable in same-day funds to the accounts specified by the
Selling Stockholders named in Schedule II hereto. If
settlement for the Option
12
Securities occurs after the Closing
Date, such Selling Stockholders will deliver to the Representatives
on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities
shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4.
Offering by Underwriters . It is understood that the
several Underwriters propose to offer the Securities for sale to
the public as set
