J.P. MORGAN SECURITIES
INC.
ULTRA CLEAN HOLDINGS,
INC.
J.P. Morgan
Securities Inc.
As Representative of the
several Underwriters listed
in Schedule I hereto
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
Ultra Clean
Holdings, Inc., a Delaware corporation (the “ Company
”), proposes to issue and sell to the several Underwriters
listed in Schedule I hereto (the “ Underwriters
”), for whom you are acting as representative (the “
Representative ”), an aggregate
of shares
of common stock, par value $0.001 per share (the “ Common
Stock ”), of the Company (the “ Primary
Shares ”) and the stockholders of the Company named in
Schedule II hereto (the “ Selling Stockholders
”), propose to sell to the Underwriters an aggregate
of shares
of Common Stock (the “ Secondary Shares ” and,
together with the Primary Shares, the “ Underwritten
Shares ”). The Company and certain of the Selling
Stockholders also propose to sell, at the option of the
Underwriters, up to an
additional shares
of Common Stock (the “ Option Shares ” and,
together with the Underwritten Shares, the “ Shares
”).
The Company and
the Selling Stockholders hereby confirm their agreement with the
several Underwriters concerning the purchase and sale of the
Shares, as follows:
1. Registration
Statement . The Company has prepared and filed with the
Securities and Exchange Commission (the “ Commission
”) under the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “ Securities Act ”), a registration
statement (File No. 333-131613), including a prospectus,
relating to the Shares. Such registration statement, as amended at
the time it becomes effective, including the information, if any,
deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time
of its effectiveness (“ Rule 430 Information
”), is referred to herein as the “ Registration
Statement ”; and as used herein, the term “
Preliminary
Prospectus ” means each prospectus included in such
registration statement (and any amendments thereto) before it
becomes effective, any prospectus filed with the Commission
pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its
effectiveness that omits Rule 430 Information, and the term
“ Prospectus ” means the prospectus in the form
first used (or made available upon request of purchasers pursuant
to Rule 173 under the Securities Act) in connection with
confirmation of sales of the Shares. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under
the Securities Act (the “ Rule 462 Registration
Statement ”), then any reference herein to the term
“Registration Statement” shall be deemed to include
such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-1 under the Securities Act, as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be.
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the
Prospectus.
At or prior to the
time when sales of the Shares were first made (the “ Time
of Sale ”), the Company had prepared the following
information (collectively with the pricing information set forth on
Annex C hereto, the “ Time of Sale Information
”): a Preliminary Prospectus dated March , 2006,
and each “free-writing prospectus” (as defined pursuant
to Rule 405 under the Securities Act) listed on Annex C
hereto.
2.
Purchase of the Shares by the Underwriters . (a) The
Company, as
to of
the Underwritten Shares, and each of the Selling Stockholders, as
and to the extent indicated in Schedule II hereto, agree,
severally and not jointly, to sell the Shares to the several
Underwriters as provided in this Agreement, and each Underwriter,
on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company and
each of the Selling Stockholders at a purchase price per share of
$ (the
“ Purchase Price ”) the number of Underwritten
Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Underwritten
Shares to be sold by the Company and by each of the Selling
Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is
the aggregate number of Underwritten Shares to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the
aggregate number of Underwritten Shares to be purchased by all the
Underwriters from the Company and all of the Selling Stockholders
hereunder.
In addition, the
Company, as
to of
the Option Shares, and the Selling Stockholders, as and to the
extent indicated in Schedule II hereto, agree, severally and
not jointly, to sell the Option Shares to the several Underwriters
and the Underwriters shall have the option to purchase at their
election up
to Option
Shares at the Purchase Price. The Underwriters, on the basis of the
representations, warranties and agreements herein contained, and
subject to the conditions set forth herein, shall have the option
to purchase, severally and not jointly, from the Company and the
Selling Stockholders at the Purchase Price that portion of the
number of Option Shares as to which such election shall have been
exercised (to be adjusted by you so as to eliminate
fractional
shares) determined by multiplying such number of Option Shares by a
fraction the numerator of which is the maximum number of Option
Shares which such Underwriter is entitled to purchase and the
denominator of which is the maximum number of Option Shares which
all of the Underwriters are entitled to purchase hereunder. Any
such election to purchase Option Shares shall be made in proportion
to the maximum number of Option Shares to be sold by each Selling
Stockholder as set forth in Schedule II hereto.
The Underwriters
may exercise the option to purchase the Option Shares at any time
in whole or in part, but only on one occasion, on or before the
thirtieth day following the date of this Agreement, by written
notice from the Representative to the Company and the
Attorney-in-Fact (as defined below). Such notice shall set forth
the aggregate number of Option Shares as to which the option is
being exercised and the date and time when the Option Shares are to
be delivered and paid for which may be the same date and time as
the Closing Date (as hereinafter defined) but shall not be earlier
than the Closing Date nor later than the tenth full business day
(as hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of
Section 12 hereof). Any such notice shall be given at least
two business days prior to the date and time of delivery specified
therein.
(b) The
Company and the Selling Stockholders understand that the
Underwriters intend to make a public offering of the Shares as soon
after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Shares on
the terms set forth in the Prospectus. The Company and the Selling
Stockholders acknowledge and agree that the Underwriters may offer
and sell Shares to or through any affiliate of an Underwriter and
that any such affiliate may offer and sell Shares purchased by it
to or through any Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately
available funds to the respective accounts specified by the Company
and the Attorneys-in-Fact (as defined below) to the Representative
in the case of the Underwritten Shares, at the offices of Davis
Polk & Wardwell, 1600 El Camino Real, Menlo Park, California,
at 10:00 A.M. New York City time
on , 2006, or at such other time
or place on the same or such other date, not later than the fifth
business day thereafter, as the Representative and the Company may
agree upon in writing or, in the case of the Option Shares, on the
date and at the time and place specified by the Representative in
the written notice of the Underwriters’ election to purchase
such Option Shares. The time and date of such payment for the
Underwritten Shares is referred to herein as the “ Closing
Date ” and the time and date for such payment for the
Option Shares, if other than the Closing Date, is herein referred
to as the “ Additional Closing Date
.”
Payment for the
Shares to be purchased on the Closing Date or the Additional
Closing Date, as the case may be, shall be made against delivery to
the Representative for the respective accounts of the several
Underwriters of the Shares to be purchased on such date in
definitive form (or, if requested by the Underwriters, by book
entry delivery through the Depository Trust Company (“
DTC ”)) registered in such names and in such
denominations as the Representative shall request in writing not
later than two full business days prior to the Closing Date or the
Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with
the sale of the
Shares duly paid by the Company or the Selling Stockholders, as the
case may be. The certificates for the Shares, unless delivered by
book-entry through the facilities of DTC, will be made available
for inspection and packaging by the Representative at the office of
J.P. Morgan Securities Inc. set forth above not later than 1:00
P.M., New York City time, on the business day prior to the Closing
Date or the Additional Closing Date, as the case may be.
(d) The
Company and each of the Selling Stockholders acknowledge and agree
that the Underwriters are acting solely in the capacity of an
arm’s length contractual counterparty to the Company and the
Selling Stockholders with respect to the offering of Shares
contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company, the Selling Stockholders
or any other person. Additionally, neither the Representative nor
any other Underwriter is advising the Company, the Selling
Stockholders or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
and the Selling Stockholders shall consult with their own advisors
concerning such matters and shall be responsible for making their
own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company or the Selling
Stockholders with respect thereto. Any review by the Underwriters
of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for
the benefit of the Underwriters and shall not be on behalf of the
Company or the Selling Stockholders.
3.
Representations and Warranties of the Company . The Company
represents and warrants to each Underwriter and the Selling
Stockholders that:
(a)
Preliminary Prospectus. No order preventing or suspending
the use of any Preliminary Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, complied in all material respects with the Securities Act
and did not contain any 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;
provided that the Company makes no representation and
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in any Preliminary
Prospectus.
(b) Time
of Sale Information . The Time of Sale Information at the Time
of Sale did not, and at the Closing Date and as of the Additional
Closing Date, as the case may be, will not, contain 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 that the Company makes no representation and
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in such Time of Sale
Information. No statement of material fact included in the
Prospectus has been omitted from the Time of Sale Information and
no statement
of material
fact included in the Time of Sale Information that is required to
be included in the Prospectus has been omitted
therefrom.
(c)
Issuer Free Writing Prospectus. Other than the Preliminary
Prospectus and the Prospectus, the Company (including its agents
and representatives, other than the Underwriters in their capacity
as such) has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in
Rule 405 under the Securities Act) that constitutes an offer to
sell or solicitation of an offer to buy the Shares (each such
communication by the Company or its agents and representatives
(other than a communication referred to in clause (i) below)
an “ Issuer Free Writing Prospectus ”) other
than (i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on Annex
C hereto and other written communications approved in writing in
advance by the Representative. Each such Issuer Free Writing
Prospectus complied in all material respects with the Securities
Act, has been filed in accordance with the Securities Act (to the
extent required thereby) and, when taken together with the
Preliminary Prospectus accompanying, or delivered prior to delivery
of, such Issuer Free Writing Prospectus, did not, and at the
Closing Date and at the Additional Closing Date, as the case may
be, will not, contain 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 that the Company
makes no representation and warranty with respect to any statements
or omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in any Issuer Free
Writing Prospectus.
(d)
Registration Statement and Prospectus. The Registration
Statement has been declared effective by the Commission. No order
suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the
Company or related to the offering has been initiated or threatened
by the Commission; as of the applicable effective date of the
Registration Statement and any amendment thereto, the Registration
Statement complied and will comply in all material respects with
the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the
Closing Date and as of the Additional Closing Date, as the case may
be, the Prospectus will not contain any 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; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in
the Registration Statement and the Prospectus and any amendment or
supplement thereto.
(e)
Financial Statements. The financial statements and the
related notes thereto of the Company and its consolidated
subsidiaries included in the Registration Statement, the Time of
Sale Information and the Prospectus comply in all material respects
with the applicable requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “
Exchange Act ”), as applicable, and present fairly in
all material respects the financial position of the Company and its
subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby, and the
supporting schedules included in the Registration Statement present
fairly in all material respects the information required to be
stated therein; the other financial information included in the
Registration Statement, the Time of Sale Information and the
Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly the information
shown thereby; and the pro forma financial
information and the related notes thereto included in the financial
statements have been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, and the
assumptions underlying such pro forma financial
information are reasonable and are set forth therein.
(f) No
Material Adverse Change. Since the date of the most recent
financial statements of the Company included in the Registration
Statement, the Time of Sale Information and the Prospectus,
(i) there has not been any material change in the capital
stock or long-term debt of the Company or any of its subsidiaries,
or any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock,
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
properties, management, financial position, stockholders’
equity, or results of operations of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor
any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries
taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries
taken as a whole; and (iii) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor disturbance or
dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority, except in each of (i),
(ii) or (iii) as otherwise disclosed in the Registration
Statement, the Time of Sale Information and the
Prospectus.
(g)
Organization and Good Standing. The Company and each of its
subsidiaries have been duly organized and are validly existing and
in good standing under the laws of their respective jurisdictions
of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure
to be so qualified or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on
the business, properties, management,
financial
position, stockholders’ equity, or results of operations of
the Company and its subsidiaries taken as a whole (a “
Material Adverse Effect ”). The Company does not own
or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21
to the Registration Statement.
(h)
Capitalization. The Company has an authorized capitalization
as set forth in the Registration Statement, the Time of Sale
Information and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital
stock of the Company (including the Shares to be sold by the
Selling Stockholders) have been duly and validly authorized and
issued and are fully paid and non-assessable and are not subject to
any pre-emptive or similar rights; except as described in or
expressly contemplated by the Time of Sale Information and the
Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding
or arrangement of any kind relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible
or exchangeable securities or any such rights, warrants or options;
the capital stock of the Company conforms in all material respects
to the description thereof contained in the Registration Statement,
the Time of Sale Information and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of
each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of any
lien, charge, encumbrance, security interest, restriction on voting
or transfer or any other claim of any third party.
(i) Due
Authorization. The Company has full right, power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder; and all action required to be taken for the
due and proper authorization, execution and delivery by it of this
Agreement and the consummation by it of the transactions
contemplated hereby has been duly and validly taken.
(j)
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(k) The
Shares. The Shares to be issued and sold by the Company
hereunder have been duly authorized by the Company and, when issued
and delivered and paid for as provided herein, will be duly and
validly issued and will be fully paid and non-assessable and will
conform to the description thereof in the Time of Sale Information
and the Prospectus; and the issuance of the Shares is not subject
to any preemptive or similar rights.
(l) No
Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject; or
(iii) in
violation of
any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any
such default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(m) No
Conflicts. The execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares to
be sold by the Company hereunder and the consummation by the
Company of the transactions contemplated by this Agreement will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation,
default, lien, charge or encumbrance that would not, individually
or in the aggregate, have a Material Adverse Effect.
(n) No
Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution,
delivery and performance by the Company of this Agreement, the
issuance and sale of the Shares to be sold by the Company hereunder
and the consummation by the Company of the transactions
contemplated by this Agreement, except for (i) the
registration of the Shares under the Securities Act (ii) such
consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities
laws in connection with the purchase and distribution of the Shares
by the Underwriters, and (iii) such consents, approvals,
authorizations, orders, registrations or qualifications the failure
of which to obtain would not, individually or in the aggregate,
materially and adversely affect the ability of the Company to
perform its obligations under this Agreement.
(o) Legal
Proceedings. Except as described in the Registration Statement,
the Time of Sale Information and the Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any
of its subsidiaries is or may be the subject that, individually or
in the aggregate, if determined adversely to the Company or any of
its subsidiaries, would reasonably be expected to have a Material
Adverse Effect or materially and adversely affect the ability of
the Company to perform its obligations under this Agreement; to the
knowledge of the Company, no such investigations, actions, suits or
proceedings are threatened or contemplated by any governmental or
regulatory authority or threatened by others; and (i) there
are no current or pending legal, governmental or regulatory
actions, suits or proceedings that are required under the
Securities Act to be described in the Registration Statement that
are not so described in the Registration Statement, the Time
of
Sale
Information and the Prospectus and (ii) there are no statutes,
regulations or contracts or other documents that are required under
the Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the
Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Time of
Sale Information and the Prospectus.
(p)
Independent Accountants. Deloitte & Touche LLP, who have
certified certain financial statements of the Company and its
subsidiaries, are an independent registered public accounting firm
with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the
Public Accounting Oversight Board (United States) and as required
by the Securities Act.
(q) Title
to Real and Personal Property. Except as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, the Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real and personal property that are
material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens (other than
liens arising pursuant to that certain Loan and Security Agreement
by and between Union Bank of California, N.A., and the Company, as
amended (the “ Credit Agreement ”)),
encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries or (ii) could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(r) Title
to Intellectual Property. The Company and its subsidiaries own
or possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) (collectively, “ intellectual property
rights ”) used in the conduct of their respective
businesses, except where the failure to own, possess or acquire
such intellectual property rights would not, individually or in the
aggregate, have a Material Adverse Effect; and, to the knowledge of
the Company, the conduct of their respective businesses will not
conflict in any material respect with any such rights of others;
and the Company and its subsidiaries have not received any notice
of any claim of infringement or conflict with any such rights of
others, except as described in the in the Registration Statement,
the Time of Sale Information and the Prospectus.
(s) No
Undisclosed Relationships. No relationship, direct or indirect,
exists between or among the Company or any of its subsidiaries, on
the one hand, and the directors, officers, stockholders, customers
or suppliers of the Company or any of its subsidiaries, on the
other, that is required by the Securities Act to be described in
the Registration Statement and the Prospectus and that is not so
described in such documents and in the Time of Sale
Information.
(t) Investment
Company Act. The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Registration Statement, the Time of
Sale Information and the Prospectus, will not be required
to
register as an
“investment company” or an entity
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “ Investment Company Act
”).
(u)
Public Utility Holding Company Act. Neither the Company nor
any of its subsidiaries is a “holding company” or a
“subsidiary company” of a holding company or an
“affiliate” thereof within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(v)
Taxes. The Company and its subsidiaries have paid all
federal, state, local and foreign taxes and filed all tax returns
required to be paid or filed through the date hereof, except for
taxes being contested in good faith; and except as otherwise
disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, there is no tax deficiency that has
been, or would reasonably be expected to be, asserted against the
Company or any of its subsidiaries or any of their respective
properties or assets.
(w)
Licenses and Permits. The Company and its subsidiaries
possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of
their respective businesses as described in the Registration
Statement, the Time of Sale Information and the Prospectus, except
where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect;
and except as described in the Registration Statement, the Time of
Sale Information and the Prospectus, neither the Company nor any of
its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the
ordinary course, except where the failure to renew such license,
certificate, permit or authorization would not, individually or in
the aggregate, have a Material Adverse Effect.
(x) No
Labor Disputes. No labor disturbance by or dispute with
employees of the Company or any of its subsidiaries exists or, to
the knowledge of the Company, is imminent, except as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(y) Compliance
With Environmental Laws. Except as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, (i) the Company and its subsidiaries (x) are
in compliance with applicable federal, state, local and foreign
laws, rules, regulations, requirements, decisions and orders
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, “ Environmental Laws
”); (y) have received and are in compliance with all
permits, licenses, certificates or other authorizations or
approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (z) have not received
notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, and
(ii) there are no costs (other than ongoing compliance costs)
or liabilities associated with Environmental Laws of or relating to
the
Company or its
subsidiaries, except in the case of each of (i)(x) and (i)(y)
above, for any such failure to comply, or failure to receive
required permits, licenses or approvals, or cost or liability, as
would not, individually or in the aggregate, have a Material
Adverse Effect.
(z)
Compliance With ERISA. Each employee benefit plan, within
the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ ERISA ”),
that is maintained, administered or contributed to by the Company
or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “ Code
”); no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative exemption; and
for each such plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, no
“accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not
waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions, except as would
not, individually or in the aggregate, have a Material Adverse
Effect.
(aa)
Disclosure Controls . The Company believes that it and its
subsidiaries maintain an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e)
of the Exchange Act) that is designed to ensure that information
required to be disclosed by the Company in reports that it files or
submits under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(bb) Accounting
Controls. The Company and its subsidiaries maintain systems of
“internal control over financial reporting” (as defined
in Rule 13a-15(f) of the Exchange Act) that comply with the
requirements of the Exchange Act and have been designed by, or
under the supervision of, their respective principal executive and
principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles, including, but not limited to
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. Except
as disclosed in the Registration Statement, the Time of
Sale
Information and
the Prospectus, the Company is not aware of any material weaknesses
in its internal controls.
(cc)
Insurance. The Company and its subsidiaries have insurance
covering their respective properties, operations, personnel and
businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks
consistent with generally accepted practices in the Company’s
industry and which the Company believes appropriate to protect the
Company and its subsidiaries and their respective businesses; and
neither the Company nor any of its subsidiaries has
(i) received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or
(ii) any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at reasonable cost from similar
insurers as may be necessary to continue its business.
(dd) No
Unlawful Payments. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries has
(i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or
(iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(ee)
Compliance with Money Laundering Laws . To the knowledge of
the Company, 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 Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all applicable jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “ Money Laundering
Laws ”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(ff)
Compliance with OFAC. None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“ OFAC ”); and the
Company will not directly or indirectly use the proceeds of the
offering of the Shares hereunder, 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.
(gg) No
Restrictions on Subsidiaries . No subsidiary of the Company is
currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or
is subject,
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
subsidiary’s properties or assets to the Company or any other
subsidiary of the Company, other than prohibitions contemplated by
the Credit Agreement.
(hh) No
Broker’s Fees. Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to
a valid claim against the Company or any of its subsidiaries or any
Underwriter for a brokerage commission, finder’s fee or like
payment in connection with the offering and sale of the
Shares.
(ii) No
Registration Rights . Except as disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus, no
person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the
Securities Act by reason of the filing of the Registration
Statement with the Commission, the issuance and sale of the Shares
to be sold by the Company or, to the knowledge of the Company, the
sale of the Shares to be sold by the Selling Stockholders hereunder
that have not been validly waived or satisfied prior to the date
hereof.
(jj) No
Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(kk)
Business With Cuba. The Company has complied with all
provisions of Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida) relating to doing business
with the Government of Cuba or with any person or affiliate located
in Cuba.
(ll)
Forward-Looking Statements. No forward-looking statement
(within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Registration
Statement, the Time of Sale Information and the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(mm)
Statistical and Market Data. Nothing has come to the
attention o
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