RTI International Metals,
Inc.
6,000,000 Shares
Plus an option to purchase from the Company, up to
900,000 additional Shares to cover over-allotments
Common Stock
($.01 par value)
New York, New York
September 10, 2009
To the
Representatives
named in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
RTI
International Metals, Inc., a corporation organized under the laws
of Ohio (the “Company”), proposes to sell to the
several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
number of shares of common stock, $.01 par value (“Common
Stock”), of the Company set forth in Schedule I hereto
(the “Securities”) (said shares to be issued and sold
by the Company being hereinafter called the “Underwritten
Securities”). The Company also proposes to grant to the
Underwriters an option to purchase up to the number of additional
shares of Common Stock set forth in Schedule I hereto 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 I
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. 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.
Representations and Warranties . 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 may
have 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 supplement 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). The initial
Effective Date of the Registration Statement was not earlier than
the date three years before the Execution Time.
(b) On each
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 each 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.
2
(c) (i) The
Disclosure Package and (ii) each electronic road show when
taken together as a whole with the Disclosure Package, 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 and the final term sheet prepared and filed
pursuant to Section 5(b) hereof 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 or such final term sheet 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 where the failure to be so qualified or in
good standing or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries taken as
a whole or on the performance by the Company of its obligations
under this Agreement (a “Material Adverse
Effect”).
(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 Final Prospectus, all outstanding shares of capital
stock of the subsidiaries are owned by the Company either directly
or
3
through wholly
owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or
encumbrances, except for any restrictions pursuant to that certain
First Amended and Restated Credit Agreement, dated
September 8, 2008, by and among the Company, the Lenders (as
defined therein), National City Bank, as administrative agent for
the Lenders (in such capacity, the “Administrative
Agent”), PNC Bank, National Association, as documentation
agent for the Lenders and Citibank, N.A. (the “Credit
Agreement”), as amended by that certain First Amendment to
the Credit Agreement, dated September 8, 2009 (the
“Amended Credit Agreement”), and documents executed in
connection with the Amended Credit Agreement.
(h) There is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required (and the Preliminary Prospectus contains in all material
respects the same description of the foregoing matters to be
contained in the Final Prospectus).
(i) This Agreement
has been duly authorized, executed and delivered by the
Company.
(j) 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.
(k) 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 and registrations or qualifications as may be required
by the Financial Industry Regulatory Authority, Inc.
(“FINRA”).
(l) 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) above, for
any such conflict, breach, violation or default that would not,
individually or in the aggregate, have a Material Adverse
Effect.
4
(m) No holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
(n) 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 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 “Prospectus Supplement Summary —
Summary Consolidated Financial Data” in the Preliminary
Prospectus, the Final Prospectus and Registration Statement fairly
present, on the basis stated in the Preliminary Prospectus, the
Prospectus and the Registration Statement, the information included
therein.
(o) 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
best knowledge of the Company, threatened that could reasonably be
expected to have a Material Adverse Effect , 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).
(p) 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.
(q) Neither the
Company nor any subsidiary of the Company 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) above, for any such default or violation
that would not, individually or in the aggregate, have a Material
Adverse Effect.
(r)
PricewaterhouseCoopers 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.
(s) There are no
transfer taxes or other similar fees or charges under Federal law
or the laws of any state, or any political subdivision thereof,
required to be paid in
5
connection with
the execution and delivery of this Agreement or the issuance by the
Company or sale by the Company of the Securities.
(t) The Company
has filed all 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,
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, 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) No labor
problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the best knowledge of the Company, 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 could have a Material Adverse Effect, 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 Prospectus (exclusive of any supplement
thereto).
(v) 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; all policies of insurance insuring the Company or
any of its subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; the
Company and its subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; and neither
the Company nor any such subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect, 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)
.
(w) 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
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), except pursuant to any restrictions
existing under the Company’s First Amended and Restated
Credit Agreement.
6
(x) The Company
and its subsidiaries possess all licenses, certificates, permits
and other authorizations issued by all applicable 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, 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 Prospectus (exclusive of any supplement
thereto).
(y) 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 (as defined in Rule 13a-15(f) of the
Exchange Act) are effective and the Company and its subsidiaries
are not aware of any material weakness in their internal controls
over financial reporting.
(z) 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.
(aa) 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.
(bb) The Company
and its subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“Environmental Laws”), (ii) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not
received notice of any actual or potential liability under any
environmental law, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals, or actual or partial liability would not,
individually or in the aggregate, have a Material Adverse Effect,
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 Prospectus (exclusive of any supplement thereto).
Except as set forth in the Disclosure Package and the Final
Prospectus, and except where the actual or partial liability would
not, individually or in the aggregate, have a Material Adverse
Effect, neither the Company nor any of the subsidiaries has been
named as a
7
“potentially responsible party”
under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(cc) In the
ordinary course of its business, the Company periodically reviews
the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect, 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).
(dd) None of the
following events has occurred or exists: (i) a failure to
fulfill the obligations, if any, under the minimum funding
standards of Section 302 of the United States Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published
interpretations thereunder with respect to a Plan, determined
without regard to any waiver of such obligations or extension of
any amortization period; (ii) an audit or investigation by the
Internal Revenue Service, the U.S. Department of Labor, the Pension
Benefit Guaranty Corporation or any other federal or state
governmental agency or any foreign regulatory agency with respect
to the employment or compensation of employees by any of the
Company or any of its subsidiaries that could have a Material
Adverse Effect; (iii) any breach of any contractual obligation, or
any violation of law or applicable qualification standards, with
respect to the employment or compensation of employees by the
Company or any of its subsidiaries that could have a Material
Adverse Effect. None of the following events has occurred or is
reasonably likely to occur: (i) a material increase in the
aggregate amount of contributions required to be made to all Plans
in the current fiscal year of the Company and its subsidiaries
compared to the amount of such contributions made in the most
recently completed fiscal year of the Company and its subsidiaries;
(ii) a material increase in the “accumulated
post-retirement benefit obligations” (within the meaning of
Statement of Financial Accounting Standards 106) of the Company and
its subsidiaries compared to the amount of such obligations in the
most recently completed fiscal year of the Company and its
subsidiaries; (iii) any event or condition giving rise to a
liability under Title IV of ERISA that could have a Material
Adverse Effect; or (iv) the filing of a claim by one or more
employees or former employees of the Company or any of its
subsidiaries related to their employment that could have a Material
Adverse Effect. For purposes of this paragraph, the term
“Plan” means a plan (within the meaning of
Section 3(3) of ERISA) subject to Title IV of ERISA with
respect to which the Company or any of its subsidiaries may have
any liability.
(ee) There is and
has been no failure on the part of the Company and, to the
Company’s knowledge, 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
8
regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 relating to loans and
Sections 302 and 906 relating to certifications.
(ff) 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.
(gg) 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 and the money laundering
statutes 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 best knowledge of the Company, threatened.
(hh) 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 currently subject to any
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.
(ii) The Company
and its subsidiaries own, possess, license or have other rights to
use, on reasonable terms, all patents, patent applications, trade
and service marks, trade and service mark registrations, trade
names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of
the Company’s business as now conducted or as proposed in the
Final Prospectus to be conducted. Except as set forth in the
Preliminary Prospectus and the Final Prospectus under the caption
“Business — Patents and Trademarks,” (a) to
the Company’s knowledge, there are no rights of third parties
to any such Intellectual Property; (b) to the Company’s
knowledge, there is no material infringement by third parties of
any such Intellectual Property; (c) there is no
9
pending or, to
the Company’s knowledge, threatened action, suit, proceeding
or claim by others challenging the Company’s rights in or to
any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim, which
could be reasonably expected to result in a Material Adverse
Effect; (d) to the Company’s knowledge, there is no
pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual
Property, and the Company is unaware of any facts which would form
a reasonable basis for any such claim, which could be reasonably
expected to result in a Material Adverse Effect; (e) there is
no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others that the Company infringes or
otherwise violates any patent, trademark, copyright, trade secret
or other proprietary rights of others, and the Company is unaware
of any other fact which would form a reasonable basis for any such
claim, which could be reasonably expected to result in a Material
Adverse Effect; (f) to the Company’s knowledge, there is
no U.S. patent or published U.S. patent application which contains
claims that dominate or may dominate any Intellectual Property
described in the Disclosure Package and the Final Prospectus as
being owned by or licensed to the Company or that interferes with
the issued or pending claims of any such Intellectual Property,
which could be reasonably expected to result in a Material Adverse
Effect; and (g) there is no prior art of which the Company is
aware that may render any U.S. patent held by the Company invalid
or any U.S. patent application held by the Company unpatentable
which has not been disclosed to the U.S. Patent and Trademark
Office.
(jj) Except as
disclosed in the Registration Statement, the Disclosure Package and
the Final Prospectus, the Company (i) does not have any
material lending or other relationship with any bank or lending
affiliate of Citigroup Global Markets Holdings Inc. and
(ii) does not intend to use any of the proceeds from the sale
of the Securities hereunder to repay any outstanding debt owed to
any affiliate of Citigroup Global Markets Holdings Inc.
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.
2.
Purchase and Sale . (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in
Schedule I hereto, the number of Underwritten Securities set
forth opposite such Underwriter’s name in Schedule II
hereto.
(b) Subject to the
terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to
the several Underwriters to purchase, severally and not jointly, up
to the number of Option Securities set forth in Schedule I
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
10
the 30th day
after the date of the Final Prospectus upon written or telegraphic
notice by the Representatives to the Company setting forth the
number of Option Securities as to which the several Underwriters
are exercising the option and the settlement date. 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, which date and time may be postponed by
agreement between the Representatives and the Company or as
provided
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