Exhibit 10.1
Underwriting
Agreement
August 10, 2009
Canaccord Adams Inc.
99 High Street, 12 th Floor
Boston, MA 02110
Ladies and Gentlemen:
Metalico, Inc., a Delaware corporation (the
“ Company ”), proposes to issue and sell to
Canaccord Adams Inc. (the “ Underwriter ”)
pursuant to this Underwriting Agreement (this “
Agreement ”) an aggregate of 6,000,000 shares (the
“ Firm Shares ”) of common stock, $0.001 par
value (the “ Common Stock ”), of the Company. In
addition, solely for the purpose of covering over-allotments, the
Company proposes to grant to the Underwriter the option to purchase
from the Company up to an additional 600,000 shares of Common Stock
(the “ Additional Shares ”). The Firm Shares and
the Additional Shares are hereinafter collectively referred to as
the “ Shares .” The Shares are described in the
Prospectus which is referred to below.
The
Company has prepared and filed, in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the “ Act
”), with the Securities and Exchange Commission (the “
Commission ”) a registration statement on
Form S-3 (File No. 333-156026) under the Act (the “
registration statement ”), including a prospectus,
which registration statement incorporates by reference documents
which the Company has filed, or will file, in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (collectively, the “
Exchange Act ”). Such registration statement has
become effective under the Act.
Except
where the context otherwise requires, “ Registration
Statement ,” as used herein, means the registration
statement, as amended at the time of such registration
statement’s effectiveness for purposes of Section 11 of
the Act, as such section applies to the Underwriter (the “
Effective Time ”), including (i) all documents
filed as a part thereof or incorporated or deemed to be
incorporated by reference therein and (ii) any information
contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, to the
extent such information is deemed, pursuant to Rule 430B or
Rule 430C under the Act, to be part of the registration
statement at the Effective Time.
Except
where the context otherwise requires, “ Basic
Prospectus ,” as used herein, means the base prospectus
included as part of the Registration Statement, in the form in
which it has most recently been filed with the Commission prior to
the date of this Agreement. Except where the context otherwise
requires, “ Prospectus Supplement ,” as used
herein, means the final prospectus supplement, relating to the
Shares, filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day
after the date hereof (or such earlier time as may be required
under the Act), in the form furnished by the Company to the
Underwriter for use by the Underwriter and by dealers in connection
with the offering of the Shares. Except where the context otherwise
requires, “ Prospectus ,” as used herein, means
the Basic Prospectus as supplemented by the Prospectus
Supplement.
“ Permitted Free Writing
Prospectuses ,” as used herein, means the documents
listed on Schedule I attached hereto. The Underwriter
has not offered or sold and will not offer or sell, without the
Company’s consent, any Shares by means of any “free
writing prospectus” (as defined in Rule 405 under the
Act) that is required to be filed by the Underwriter with the
Commission pursuant to Rule 433 under the Act, other than a
Permitted Free Writing Prospectus.
“ Disclosure Package ,” as
used herein, means the Basic Prospectus, together with the
Permitted Free Writing Prospectuses, if any, and the information
set forth on Schedule II attached hereto, taken as a
whole.
Any
reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein (each an “
Incorporated Document ” and collectively, the “
Incorporated Documents ”), including, unless the
context otherwise requires, the documents, if any, filed as
exhibits to such Incorporated Documents. Any reference herein to
the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed
to refer to and include the filing of any document under the
Exchange Act on or after the initial effective date of the
Registration Statement, or the date of the Basic Prospectus, the
Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
As
used in this Agreement, “business day” shall mean a day
on which the New York Stock Exchange, Inc. is open for trading. The
terms “herein,” “hereof,”
“hereto,” “hereinafter” and similar terms,
as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement. The term
“or,” as used herein, is not exclusive.
The
Company and the Underwriter agree as follows:
1. Sale and Purchase . Upon the
basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Company agrees to issue
and sell to the Underwriter and the Underwriter agrees to purchase
from the Company the Firm Shares, at a purchase price of $4.18 per
Share. The Company is advised by the Underwriter that the
Underwriter intends (i) to make a public offering of the Firm
Shares as soon after the effectiveness of this Agreement as in the
Underwriter’s judgment is advisable and (ii) to offer
the Firm Shares upon the terms set forth in the Prospectus. The
Underwriter may from time to time increase or decrease the public
offering price after the initial public offering to such extent as
the Underwriter may determine.
In
addition, the Company hereby grants to the Underwriter the option
to purchase, and upon the basis of the warranties and
representations and subject to the terms and conditions herein set
forth, the Underwriter shall have the right to purchase from the
Company, all or a portion of the Additional Shares as may be
necessary solely to cover over-allotments, if any, made in
connection with the offering of the Firm Shares, at the same
purchase price per share to be paid by the Underwriter to the
Company for the Firm Shares. This option may be exercised by the
Underwriter at any time and from time to time on or before the
thirtieth (30 th ) day following the date hereof, by
written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is
being exercised, and the date and time when the Additional Shares
are to be delivered (such date and time being herein referred to as
the “ Additional Time of Purchase ”); provided,
however, that the Additional Time of Purchase shall not be earlier
than the Time of Purchase (as defined below) nor earlier than the
second business day after the date on which the option shall have
been exercised nor later than the tenth business day after the date
on which the option shall have been exercised.
2. Payment and Delivery . Payment
of the purchase price for the Firm Shares shall be made to the
Company by Federal Funds wire transfer against delivery of the
certificates for the Firm Shares to the Underwriter through the
facilities of The Depository Trust Company (“ DTC
”) for the account of the Underwriter. Such payment and
delivery shall be made at 10:00 A.M., New York time, on
August 14, 2009 (the “ Closing Date ”)
(unless another time shall be agreed to by the Underwriter and the
Company). The time at which such payment and delivery are to be
made is hereinafter sometimes called the “ Time of
Purchase .” Electronic transfer of the Firm Shares shall
be made to the Underwriter at the Time of Purchase in such names
and in such denominations as the Underwriter shall
specify.
Payment of the purchase price for the Additional
Shares shall be made at the Additional Time of Purchase in the same
manner and at the same office as the payment for the Firm Shares.
Electronic transfer of the Firm Shares shall be made to the
Underwriter at the Time of Purchase in such names and in such
denominations as the Underwriter shall specify. The Time of
Purchase and the Additional Time of Purchase are sometimes referred
to herein as the “ Closing Dates ”.
Deliveries of the documents described in
Section 5 hereof with respect to the purchase of the
Shares shall be made at the offices of Lowenstein Sandler P.C.,
counsel for the Company, located at 65 Livingston Avenue, Roseland,
New Jersey, at 10:00 A.M., New York time, on the date of the
closing of the purchase of the Shares.
3. Representations and Warranties of
the Company . The Company represents and warrants to and agrees
with the Underwriter that:
(a) the Registration Statement has
heretofore become effective under the Act; no stop order of the
Commission preventing or suspending the use of the Basic
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for
such purpose have been instituted or, to the Company’s
knowledge, are contemplated by the Commission;
(b) the Registration Statement complied
when it became effective, complies as of the Effective Time and, as
amended or supplemented, at the Time of Purchase and at the
Additional Time of Purchase, as the case may be, and at all times
during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under
the Act or any similar rule) in connection with any sale of Shares,
will comply, in all material respects, with the requirements of the
Act; the conditions to the use of Form S-3 in connection with
the offering and sale of the Shares as contemplated hereby have
been satisfied; the Registration Statement meets, and the offering
and sale of the Shares as contemplated hereby complies with, the
requirements of Rule 415 under the Act (including, without
limitation, Rule 415(a)(5) under the Act); the Registration
Statement did not, as of the Effective Time, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Basic Prospectus complied as of its
date and the date it was filed with the Commission, complies as of
the date hereof and, at the Time of Purchase and at the Additional
Time of Purchase, as the case may be, and at all times during which
a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, will
comply, in all material respects, with the requirements of the Act;
the Disclosure Package does not include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; each of the Prospectus
Supplement and the Prospectus will comply, as of the date that it
is filed with the Commission, the date of the Prospectus
Supplement, the Time of Purchase and the Additional Time of
Purchase, as the case may be, and at all times during which a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, in all
material respects, with the requirements of the Act (in the case of
the Prospectus, including, without limitation, Section 10(a) of the
Act); at no time during the period that begins on the earlier of
the date of the Prospectus Supplement and the date the Prospectus
Supplement is filed with the Commission and ends at the later of
the Time of Purchase, the Additional Time of Purchase and the end
of the period during which a prospectus is required by the Act to
be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares did or will any Prospectus Supplement or the
Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; each
Permitted Free Writing Prospectus does not conflict with the
information contained in the Registration Statement, the Disclosure
Package or the Prospectus, and at no time during the period that
begins on the date of such Permitted Free Writing Prospectus and
ends at the Time of Purchase and at the Additional Time of
Purchase, as the case may be, did or will any Permitted Free
Writing Prospectus include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided , however ,
that the Company makes no representation or warranty in this
Section 3(b) with respect to any statement contained in
the Registration Statement, the Prospectus or any Permitted Free
Writing Prospectus in reliance upon and in conformity with
information concerning the Underwriter and furnished in writing by
such Underwriter to the Company expressly for use in the
Registration Statement, the Prospectus or such Permitted Free
Writing Prospectus, it being understood and agreed that the only
such information furnished by the Underwriter consists of the
information described as such in Section 7(g) ; each
Incorporated Document, at the time such document was filed with the
Commission, complied, in all material respects, with the
requirements of the Exchange Act and did not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading;
(c) prior to the execution of this
Agreement, the Company has not, directly or indirectly, offered or
sold any Shares by means of any “prospectus” (within
the meaning of the Act) or used any “prospectus”
(within the meaning of the Act) in connection with the offer or
sale of the Shares, in each case other than the Basic Prospectus
and the Permitted Free Writing Prospectuses, if any; the Company
has not, directly or indirectly, prepared, used or referred to any
Permitted Free Writing Prospectus except in compliance with
Rule 163 or with Rules 164 and 433 under the Act;
assuming that such Permitted Free Writing Prospectus is so sent or
given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was,
if required pursuant to Rule 433(d) under the Act, filed with
the Commission), the sending or giving, by the Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of
Rule 164 and Rule 433 (without reliance on subsections
(b), (c) and (d) of Rule 164); the conditions set
forth in one or more of subclauses (i) through (iv),
inclusive, of Rule 433(b)(1) under the Act are satisfied, and
the registration statement relating to the offering of the Shares
contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433
or Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the Underwriter
are disqualified, by reason of subsection (f) or (g) of
Rule 164 under the Act, from using, in connection with the
offer and sale of the Shares, “free writing
prospectuses” (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Company is
not an “ineligible issuer” (as defined in Rule 405
under the Act) as of the eligibility determination date for
purposes of Rules 164 and 433 under the Act with respect to
the offering of the Shares contemplated by the Registration
Statement; the Company is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act and is currently
eligible to use Form S-3 pursuant to General Instruction I.B.1. of
Form S-3;
(d) as of the date of this Agreement, the
Company has an authorized and outstanding capitalization as set
forth in the Disclosure Package and, as of the Time of Purchase,
the Company shall have an authorized and outstanding capitalization
as set forth in the Disclosure Package (subject, in each case, to
the issuance of shares of Common Stock upon exercise of stock
options and warrants and conversion of convertible notes disclosed
as outstanding in the Registration Statement (excluding the
exhibits thereto) and the Prospectus and the grant of options under
existing stock option plans described in the Registration Statement
(excluding the exhibits thereto) and the Prospectus); all of the
issued and outstanding shares of capital stock, including the
Shares, of the Company have been duly authorized and validly issued
and are fully paid and non-assessable, have been issued in
compliance with all applicable securities laws and were not issued
in violation of any preemptive right, resale right, right of first
refusal or similar right;
(e) the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement, the Prospectus
and the Permitted Free Writing Prospectuses, if any, to execute and
deliver this Agreement and to issue, sell and deliver the Shares as
contemplated herein;
(f) the Company is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, (i) have a material
adverse effect on the business, properties, financial condition, or
results of operations of the Company and the Subsidiaries (as
defined below) taken as a whole, (ii) prevent or materially
interfere with consummation of the transactions contemplated hereby
or (iii) result in the delisting of shares of Common Stock
from the NYSE Amex (the occurrence of any such effect or any such
prevention or interference or any such result described in the
foregoing clauses (i), (ii) and (iii) being herein
referred to as a “ Material Adverse Effect
”);
(g) the Company has no subsidiaries (as
defined under the Act) other than those listed on Exhibit 21.1
to the Company’s Annual Report on Form 10-K for the year
ended December 31, 2008; except as disclosed in the
Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any, (i) the Company owns, directly
or indirectly, all of the issued and outstanding capital stock of
each of the Subsidiaries, and (ii) the Company does not own,
directly or indirectly, any shares of stock or any other equity
interests or long-term debt securities of any corporation, firm,
partnership, joint venture, association or other entity; complete
and correct copies of the charters and the bylaws of the Company
and the Subsidiaries and all amendments thereto have been made
available to the Underwriter, and no changes therein will be made
on or after the date hereof through and including the Time of
Purchase and the Additional Time of Purchase, as the case may be;
each Subsidiary has been incorporated or organized and is validly
existing as a corporation or limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any; each Subsidiary is
qualified to do business as a foreign corporation or limited
liability company, as the case may be, and is in good standing in
each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse
Effect; except as disclosed in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, all
of the outstanding
shares
of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable,
have been issued in compliance with all applicable securities laws,
were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right and are owned by the
Company subject to no security interest, other encumbrance or
adverse claims; except as disclosed in the Registration Statement,
the Prospectus and the Permitted Free Writing Prospectuses, if any,
no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in
the Subsidiaries are outstanding; the Company has no
“significant subsidiary,” as that term is defined in
Rule 1-02(w) of Regulation S-X under the Act, other than
Metalico Rochester, Inc., Metalico Buffalo, Inc., Mayco Industries,
Inc., Federal Autocat Recycling, LLC, Metalico Akron, Inc.,
American CatCon, Inc. and Metalico Pittsburgh, Inc. (collectively,
the “ Subsidiaries ”);
(h) the Shares have been duly and validly
authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar rights;
the Shares, when issued and delivered against payment therefor as
provided herein, will be free of any restriction upon the voting or
transfer thereof pursuant to the Delaware General Corporation Law
or the Company’s charter or bylaws or any agreement or other
instrument to which the Company is a party;
(i) the capital stock of the Company,
including the Shares, conforms in all material respects to each
description thereof, if any, contained or incorporated by reference
in the Registration Statement, the Prospectus and the Permitted
Free Writing Prospectuses, if any;
(j) this Agreement has been duly
authorized, executed and delivered by the Company;
(k) neither the Company nor any of the
Subsidiaries is in breach or violation of or in default under (nor
has any event occurred which, with notice, lapse of time or both,
would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on
such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) (A) its charter or bylaws, or (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound or affected, or (C) any
federal, state, local or foreign law, regulation or rule, or
(D) any rule or regulation of any self-regulatory organization
or other non-governmental regulatory authority (including, without
limitation, the rules and regulations of the NYSE Amex), or
(E) any decree, judgment or order applicable to it or any of
its properties; except, in the cases of clause (B), (C),
(D) and (E), where such occurrence would not, individually or
in the aggregate, have a Material Adverse Effect;
(l) the execution, delivery and performance
of this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a
default under (nor constitute any event which, with notice, lapse
of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness
(or a person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (or result in the creation or imposition
of a lien, charge or encumbrance on any property or assets of the
Company or any Subsidiary pursuant to) (A) the charter or
bylaws of the Company or any of the Subsidiaries, or (B) any
indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, or (C) any
federal, state, local or foreign law, regulation or rule, or
(D) any rule or regulation of any self-regulatory organization
or other non-governmental regulatory authority (including, without
limitation, the rules and regulations of the NYSE Amex), or
(E) any decree, judgment or order applicable to the Company or
any of the Subsidiaries or any of their respective properties;
except, in the cases of clause (B), (C), (D) and (E), where
such occurrence would not, individually or in the aggregate, have a
Material Adverse Effect;
(m) except for approvals or consents
obtained on or prior to the date of this Agreement, no approval,
authorization, consent or order of or filing with any federal,
state, local or foreign governmental or regulatory commission,
board, body, authority or agency, or of or with any self-regulatory
organization or other non-governmental regulatory authority, or
approval of the shareholders of the Company, is required in
connection with the issuance and sale of the Shares or the
consummation by the Company of the transactions contemplated
hereby, other than (i) registration of the Shares under the
Act, which has been effected, (ii) any necessary qualification
under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriter;
(iii) the listing of the Shares on the NYSE Amex or
(iv) under the Conduct Rules of the Financial Industry
Regulatory Authority, Inc. (“ FINRA
”);
(n) except as described in the Registration
Statement (excluding the exhibits thereto) and the Prospectus,
(i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any shares of Common Stock
or shares of any other capital stock or other equity interests of
the Company, (ii) except for the holders of the
Company’s 7.0% Senior Unsecured Convertible Notes due
April 30, 2028, no person has any preemptive rights, resale
rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock of or
other equity interests in the Company and (iii) no person has
the right to act as an underwriter or as a financial advisor to the
Company in connection with the offer and sale of the Shares; no
person has the right, contractual or otherwise, to cause the
Company to register under the Act any shares of Common Stock or
shares of any other capital stock of or other equity interests or
securities in the Company, or to include any such shares or
interests or securities in the Registration Statement or the
offering contemplated thereby, other than such shares, interests or
securities that have already been registered by the
Company;
(o) each of the Company and the
Subsidiaries has all necessary licenses, authorizations, consents
and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary
licenses, authorizations, consents and approvals from other
persons, in order to conduct their respective businesses, except
where the failure to have or obtain such licenses, authorizations,
consents and approvals would not, individually or in the aggregate,
have a Material Adverse Effect; neither the Company nor any of the
Subsidiaries is in violation of, or in default under, or has
received notice of any proceedings relating to revocation or
modification 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, except where such violation, default,
revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect;
(p) except as described in the Registration
Statement (excluding the exhibits thereto) and the Prospectus,
there are no actions, suits, claims, investigations or proceedings
pending or, to the Company’s knowledge, threatened or
contemplated to which the Company or any of the Subsidiaries or any
of their respective directors or officers is or would be a party or
of which any of their respective properties is or would be subject
at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body,
authority or agency, or before or by any self-regulatory
organization or other non-governmental regulatory authority
(including, without limitation, the NYSE Amex), except any such
action, suit, claim, investigation or proceeding which, if resolved
adversely to the Company or any Subsidiary, would not, individually
or in the aggregate, have a Material Adverse Effect;
(q) Each of (i) McGladrey & Pullen
LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is included or incorporated by
reference in the Registration Statement and the Prospectus, and
(ii) J.H. Cohn LLP, are independent registered public
accountants with respect to the Company as required by the Act and
by the rules of the Public Company Accounting Oversight
Board;
(r) the financial statements included or
incorporated by reference in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
together with the related notes and schedules, present fairly the
consolidated financial position of the Company and the Subsidiaries
as of the dates indicated and the consolidated results of
operations, cash flows and changes in shareholders’ equity of
the Company for the periods specified have been prepared in
compliance with the requirements of the Act and Exchange Act and in
conformity with U.S. generally accepted accounting principles
applied on a consistent basis during the periods involved; the
other financial and statistical data contained or incorporated by
reference in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, are accurately and
fairly presented and prepared on a basis consistent with the
financial statements and books and records of the Company; there
are no financial statements (historical or pro forma) that are
required to be included or incorporated by reference in the
Registration Statement or the Prospectus that are not included or
incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits
thereto) and the Prospectus; and all disclosures contained or
incorporated by reference in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply
with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent
applicable;
(s) subsequent to the respective dates as
of which information is given in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, in
each case excluding any amendments or supplements to the foregoing
made after the execution of this Agreement, there has not been
(i) any event or occurrence that has resulted in a material
adverse change in the business, properties, management, financial
condition, or results of operations of the Company and the
Subsidiaries taken as a whole, (ii) any transaction which is
material to the Company and the Subsidiaries taken as a whole,
(iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the
Company or any Subsidiary, which is material to the Company and the
Subsidiaries taken as a whole, (iv) any change in the capital
stock of the Company, except for the issuance of stock pursuant to
the exercise of stock options or warrants or conversion of
convertible notes outstanding, or pursuant to the stock option
plans of the Company in effect or pursuant to this Agreement, in
each case, as of the dates as of which information is given in the
Registration Statement and the Prospectus, or outstanding
indebtedness of the Company or any Subsidiaries or (v) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company or any Subsidiary;
(t) the Company has obtained for the
benefit of the Underwriter the agreement, in the form set forth as
Exhibit A hereto, of (i) each of its directors and
“officers” (within the meaning of Rule 16a-1(f)
under the Exchange Act) listed on Schedule III hereto
and (ii) certain of its stockholders listed on
Schedule III hereto (each a “ Lock-Up
Agreement ” and collectively, the “ Lock-Up
Agreements ”);
(u) neither the Company nor any Subsidiary
is, and at no time during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares will either of them be, and, after giving effect
to the offering and sale of the Shares and the application of the
proceeds thereof, neither of them 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 ”);
(v) neither the Company nor any Subsidiary
is and, after giving effect to the offering and sale of the Shares,
neither will be a “holding company” or a
“subsidiary company” of a “holding company”
or an “affiliate” of a “holding company” or
of a “subsidiary company,” as such terms are defined in
the Public Utility Holding Company Act of 1935, as
amended;
(w) the Company and each of the
Subsidiaries have good and marketable title to all property (real
and personal) described in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, as
being owned by any of them, free and clear of all liens, claims,
security interests or other encumbrances, except such as are
described in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such
property by the Company and its Subsidiaries; all the material
property described in the Registration Statement, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as being held
under lease by the Company or a Subsidiary is held thereby under
valid, subsisting and enforceable leases;
(x) each material contract, agreement and
license listed as an exhibit to, described in or incorporated by
reference in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, to which the Company
or any of its Subsidiaries is bound is legal, valid, binding,
enforceable and in full force and effect against the Company or
such Subsidiary, and to the knowledge of the Company, each other
party thereto, except to the extent such enforceability is subject
to (i) laws of general application relating to bankruptcy,
insolvency, moratorium and the relief of debtors and (ii) the
availability of specific performance, injunctive relief and other
equitable remedies. Neither the Company nor any of its Subsidiaries
nor to the Company’s knowledge any other party is in material
breach or default with respect to any such contract, agreement and
license. To the Company’s knowledge, no event has occurred
which with notice or lapse of time would constitute a breach or
default, or permit termination, modification, or acceleration,
under any such contract, agreement or license, except any such
breach, default, termination, modification, or acceleration which
would not, individually or in the aggregate, have a Material
Adverse Effect. No party has repudiated any material provision of
any such contract, agreement or license;
(y) the Company and the Subsidiaries own,
or have obtained valid and enforceable licenses for, or other
rights to use, the inventions, patent applications, patents,
trademarks (both registered and unregistered), tradenames, service
names, copyrights, trade secrets and other proprietary information
described in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, as being owned or
licensed by them or which are necessary for the conduct of their
respective businesses as currently conducted or as proposed to be
conducted, except where the failure to own, license or have such
rights would not, individually or in the aggregate, have a Material
Adverse Effect (collectively, “ Intellectual Property
”); there are no third parties who have or, to the
Company’s knowledge, will be able to establish rights to any
Intellectual Property, except for, and to the extent of, the
ownership rights of the owners of the Intellectual Property which
is licensed to the Company and the license rights of any third
parties to which the Intellectual Property is licensed; to the
knowledge of the Company, there is no infringement by third parties
of any Intellectual Property; there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the Company’s rights in or to any
Intellectual Property, except as would not, individually or in the
aggregate, have a Material Adverse Effect, and the Company is
unaware of any facts which could form a reasonable basis for any
such action, suit, proceeding or claim; there is no pending or, to
the Company’s knowledge, threatened action, suit, proceeding
or claim by others challenging the validity, enforceability or
scope of any Intellectual Property, and the Company is unaware of
any facts which could form a reasonable basis for any such action,
suit, proceeding or claim; there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company or any Subsidiary infringes or
otherwise violates, any patent, trademark, tradename, service name,
copyright, trade secret or other proprietary rights of others, and
the Company is unaware of any facts which could form a reasonable
basis for any such action, suit, proceeding or claim; the Company
and the Subsidiaries have complied in all material respects with
the terms of each agreement pursuant to which Intellectual Property
has been licensed to the Company or any Subsidiary, and all such
agreements are in full force and effect; to the knowledge of the
Company, there is no patent or patent application that contains
claims that interfere with the issued or pending claims of any of
the Intellectual Property or that challenges the validity,
enforceability or scope of any of the Intellectual Property; and to
the knowledge of the Company, there is no prior art that may render
any patent application within the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office;
(z) to the Company’s knowledge,
neither the Company nor any of the Subsidiaries is engaged in any
unfair labor practice; except for matters which would not,
individually or in the aggregate, have a Material Adverse Effect,
(i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against
the Company or any of the Subsidiaries before the National Labor
Relations Board, and no grievance or arbitration proceeding arising
out of or under collective bargaining agreements is pending or, to
the Company’s knowledge, threatened, (B) no strike,
labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company or any of
the Subsidiaries and (C) no union representation dispute
currently existing concerning the employees of the Company or any
of the Subsidiaries, (ii) to the Company’s knowledge, no
union organizing activities are currently taking place concerning
the employees of the Company or any of the Subsidiaries and
(iii) there has been no violation of any federal, state, local
or foreign law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws, any
provision of the Worker Adjustment and Retraining Notification Act
of 1988, as amended (“ WARN Act ”) or the WARN
Act’s state, foreign or local equivalent, or any provision of
the Employee Retirement Income Security Act of 1974 (“
ERISA ”) or the rules and regulations promulgated
thereunder concerning the employees of the Company or any of the
Subsidiaries; the Company and each Subsidiary is in compliance with
all presently applicable provisions of ERISA, except where such
non-compliance would not result in a Material Adverse Effect; no
material “reportable event” (as defined in ERISA) has
occurred with respect to any “pension plan” (as defined
in ERISA) to which the Company or any Subsidiary contributes or
which the Company or any Subsidiary maintains; the Company and each
Subsidiary has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “pension plan” or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the “ Code ”); and each
“pension plan” for which the Company or any Subsidiary
wou
