EXHIBIT 1.1
SAVIENT PHARMACEUTICALS, INC.
4,300,000 Shares of Common Stock, $.01 per share
par value
Underwriting Agreement
October 8, 2009
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J.P. Morgan Securities Inc.
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As Representative of the several Underwriters
listed in Schedule 1 hereto
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c/o J.P. Morgan Securities Inc.
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383 Madison Avenue
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New York, New York 10179
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Ladies and Gentlemen:
Savient
Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), proposes to issue and sell to the several
Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representative (the “Representative”), an aggregate of
4,300,000 shares of Common Stock, $.01 per share par value (the
“Common Stock”), of the Company (the
“Underwritten Shares”) and, at the option of the
Underwriters, up to an additional 645,000 shares of Common Stock
(the “Option Shares”). The Underwritten Shares and the
Option Shares are herein referred to as the “Shares.”
The shares of Common Stock of the Company to be outstanding after
giving effect to the sale of the Shares are referred to herein as
the “Stock.”
The
Company hereby confirms its 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 on Form S-3 (File No. 333-146257), including a
prospectus, relating to the Shares. Such registration statement, as
amended at the time it became 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
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 to the
Underwriters by the Company 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-3 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, and any reference to
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. 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 Applicable Time (as defined below), the Company had
prepared the following information (collectively with the pricing
information set forth on Annex A, the “Pricing Disclosure
Package”): a Preliminary Prospectus (consisting of a base
prospectus dated October 10, 2007 and a preliminary prospectus
supplement dated October 7, 2009) and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex A hereto.
“Applicable
Time” means 5:30 P.M., New York City time, on October 8,
2009.
2.
Purchase of the Shares by the Underwriters .
(a) The
Company agrees to issue and sell the Underwritten 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 the respective number of Underwritten Shares set forth
opposite such Underwriter’s name in Schedule 1 hereto at a
price per share (the “Purchase Price”) of
$12.4926.
In
addition, the Company agrees to issue and sell the Option Shares to
the several Underwriters as provided in this Agreement, and the
Underwriters, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, shall have the option to purchase, severally and not
jointly, from the Company the Option Shares at the Purchase Price
less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Underwritten Shares but
not payable on the Option Shares.
If
any Option Shares are to be purchased, the number of Option Shares
to be purchased by each Underwriter shall be the number of Option
Shares which bears the same ratio to the aggregate number of Option
Shares being purchased as the number of Underwritten Shares set
forth opposite the name of such Underwriter in Schedule 1 hereto
(or such number increased as set forth in Section 10 hereof) bears
to the aggregate number of Underwritten Shares being purchased from
the Company by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the
Representative in its sole discretion shall make.
The
Underwriters may exercise the option to purchase Option Shares at
any time in whole, or from time to time in part, on or before the
thirtieth day following the date of the Prospectus, by written
notice from the Representative to the Company. 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 or 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 10 hereof). Any such notice shall be given at
least two business days prior to the date and time of delivery
specified therein.
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(b) The
Company understands 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 acknowledges and agrees that the
Underwriters may offer and sell Shares to or through any affiliate
of an Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the
Representative in the case of the Underwritten Shares, at the
offices of Dechert LLP, New York, NY at 10:00 A.M., New York City
time, on October 15, 2009, 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,
with any transfer taxes payable in connection with the sale of such
Shares duly paid by the Company. Delivery of the Shares shall be
made through the facilities of The Depository Trust Company
(“DTC”) unless the Representative shall otherwise
instruct. The certificates for the Shares will be made available
for inspection and packaging by the Representative at the office of
DTC or its designated custodian 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 acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm’s length contractual
counterparty to the Company 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 or any other person.
Additionally, neither the Representative nor any other Underwriter
is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction.
The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated
hereby, and the Underwriters shall have no responsibility or
liability to the Company 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.
3.
Representations and Warranties of the Company . The Company
represents and warrants to each Underwriter that:
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(a)
Preliminary Prospectus. No order preventing or suspending
the use of any Preliminary Prospectus has been issued by the
Commission, and each Preliminary Prospectus included in the Pricing
Disclosure Package, at the time of filing thereof, complied in all
material respects with the Securities Act, and no Preliminary
Prospectus, at the time of filing thereof, contained any untrue
statement of a material fact or omitted 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
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relating to any Underwriter
furnished to the Company in writing by or on behalf of any such
Underwriter through the Representative expressly for use in any
Preliminary Prospectus, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
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(b)
Pricing Disclosure Package . The Pricing Disclosure Package
as of the Applicable Time did not, and as of 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
or on behalf of any such Underwriter through the Representative
expressly for use in such Pricing Disclosure Package, it being
understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
Section 7(b) hereof.
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(c)
Issuer Free Writing Prospectus. Other than the Registration
Statement, the Preliminary Prospectus and the Prospectus, the
Company (including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, used,
authorized, approved or referred to and will not prepare, 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 A hereto, each electronic road show and any 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 or will
be (within the time period specified in Rule 433) 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 as of 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 each such Issuer Free Writing Prospectus or
Preliminary Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by or on behalf of such Underwriter through the
Representative expressly for use in such Issuer Free Writing
Prospectus or Preliminary Prospectus, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
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(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, to the knowledge of the Company, no
proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering of
the Shares has been initiated or threatened by the Commission; as
of the applicable effective date of the Registration Statement and
any post-effective amendment thereto, the Registration Statement
and any such post-effective amendment 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
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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 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 or on behalf of such Underwriter through the
Representative expressly for use in the Registration Statement and
the Prospectus and any amendment or supplement thereto, it being
understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
Section 7(b) hereof.
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(e)
Incorporated Documents. The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Pricing Disclosure Package, when they were filed with the
Commission, conformed in all material respects to the requirements
of the Exchange Act, and none of such documents, when they were
filed with the Commission, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement,
the Prospectus or the Pricing Disclosure Package, when such
documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and will
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
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(f)
Financial Statements. The financial statements (including
the related notes thereto) of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the
Company and its consolidated 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 in the United States applied on a consistent basis
throughout the periods covered thereby, except as otherwise
disclosed therein and, in the case of unaudited, interim financial
statements, subject to normal year-end audit adjustments and the
exclusion of certain footnotes, and any supporting schedules
included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein; and
the other financial information included or incorporated by
reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus has been derived from the accounting
records of the Company and its consolidated subsidiaries and
presents fairly the information shown thereby.
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(g)
No Material Adverse Change. Since the date of the most
recent financial statements of the Company included or incorporated
by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (i) there has not been any change in
the capital stock (other than the issuance of shares of Common
Stock upon exercise of stock options and warrants or upon the
vesting of restricted stock units and performance share awards
described as outstanding in, and the grant of options and other
awards under existing equity incentive plans or the grant of Common
Stock under an employee stock purchase plan described in, the
Registration Statement, the Pricing Disclosure Package and the
Prospectus), increase in long-term debt of the Company or any of
its subsidiaries, or any dividend or distribution of any
kind
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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, results
of operations or prospects 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 (whether
or not in the ordinary course of business) 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
loss or interference with its business that is material to the
Company and its subsidiaries taken as a whole and that is either
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 case as
otherwise disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
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(h)
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 in good standing 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, results of
operations or prospects 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
Schedule 2 hereto.
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(i)
Capitalization. The Company has an authorized capitalization
as set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus under the heading “Description of
Capital Stock”; all the outstanding shares of capital stock
of the Company 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 Pricing Disclosure Package 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 Pricing Disclosure Package and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of
each subsidiary owned, directly or indirectly, by 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.
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(j)
Stock Options. With respect to the stock options (the
“Stock Options”) granted pursuant to the stock-based
compensation plans of the Company and its subsidiaries (the
“Company Stock Plans”), (i) to the Company’s
knowledge, each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the Code
so qualifies, (ii) each grant of a
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Stock Option was duly authorized
no later than the date on which the grant of such Stock Option was
by its terms to be effective (the “Grant Date”) by all
necessary corporate action, including, as applicable, approval by
the board of directors of the Company (or a duly constituted and
authorized committee thereof) and any required stockholder approval
by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and
delivered by each party thereto, (iii) to the Company’s
knowledge, each such grant was made in accordance with the terms of
the Company Stock Plans, the Exchange Act and all other applicable
laws and regulatory rules or requirements, including the rules of
the Nasdaq Global Market (“Nasdaq”) and any other
exchange on which Company securities are traded, and (iv) to
the Company’s knowledge, each such grant was properly
accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company and disclosed in the
Company’s filings with the Commission in accordance with the
Exchange Act and all other applicable laws. The Company has not
knowingly granted, and there is no and has been no policy or
practice of the Company of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the release
or other public announcement of material information regarding the
Company or its subsidiaries or their results of operations or
prospects.
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(k)
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.
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(l)
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
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(m)
The Shares. The Shares to be issued and sold by the Company
hereunder have been duly authorized and, when issued and delivered
and paid for as provided herein, will be duly and validly issued,
will be fully paid and nonassessable and will conform in all
material respects to the descriptions thereof in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; the
issuance of the Shares is not subject to any pre-emptive or similar
rights.
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(n)
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 having jurisdiction over the Company or any of its
subsidiaries, 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.
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(o)
No Conflicts. The execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares and
the consummation 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
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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 having jurisdiction over the Company or any of
its subsidiaries, except, in the case of clauses (i) and (iii)
above, for any such conflict, breach, violation or default that
would not, individually or in the aggregate, have a Material
Adverse Effect.
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(p)
No Consents Required. No consent, approval, authorization,
order, license, 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 and the consummation
of the transactions contemplated by this Agreement, except for the
registration of the Shares under the Securities Act and such
consents, approvals, authorizations, orders and registrations or
qualifications as have already been obtained or made or as may be
required by the Financial Industry Regulatory Authority, Inc.
(“FINRA”) and under applicable state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
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(q)
Legal Proceedings. Except as described in the Registration
Statement, the Pricing Disclosure Package 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 a party or to which any property of the Company or
any of its subsidiaries is the subject that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect; 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,
the Pricing Disclosure Package or the Prospectus that are not so
described in the Registration Statement, the Pricing Disclosure
Package 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, the Pricing
Disclosure Package or the Prospectus that are not so filed as
exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
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(r)
Independent Accountants . McGladrey & Pullen LLP, who
have certified certain financial statements of the Company and its
subsidiaries, is 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 Company Accounting Oversight Board (United States) and as
required by the Securities Act.
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(s)
Title to Real and Personal Property . The Company and its
subsidiaries have good and marketable title in fee simple (in the
case of real property) to, or have valid and marketable rights to
lease or otherwise use, all items of real and personal property and
assets that are material to the Company and its subsidiaries taken
as a whole, in each case free and clear of all liens, 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)
would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.
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(t)
Title to Intellectual Property . The Company and its
subsidiaries own or have valid, binding and enforceable licenses or
other rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyright registrations, licenses and
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective
businesses as currently conducted and as proposed to be conducted,
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, 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. The Company and
its subsidiaries have not received any notice (i) of any claim of
infringement, misappropriation or conflict with any such rights of
others in connection with its patents, patent rights, licenses,
inventions, trademarks, service marks, trade names, copyright
registrations and know-how or in connection with any products
(whether existing or under development by the Company or any of its
subsidiaries or otherwise with respect to the Company’s and
its subsidiaries’ businesses) or (ii) challenging the
validity, enforceability, ownership or license rights to any
intellectual property rights owned by or licensed to the Company or
any of its subsidiaries, which could reasonably be expected to
result in a Material Adverse Effect.
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(u)
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 Pricing
Disclosure Package.
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(v)
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 Pricing Disclosure Package 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”).
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(w)
Taxes. The Company and its subsidiaries have filed all
federal, state, local and foreign tax returns required to be filed
through the date hereof and paid all taxes shown as due thereon,
except for taxes being contested in good faith, in each case,
except as would not have a Material Adverse Effect; and except as
otherwise disclosed in the Registration Statement, the Pricing
Disclosure Package 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, in each case, except as would not
have a Material Adverse Effect.
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(x)
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 Pricing Disclosure Package 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 Pricing
Disclosure Package 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.
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(y)
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 contemplated or threatened, and
the Company is not aware of any existing or imminent labor
disturbance by, or dispute with, the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers,
except as would not have a Material Adverse Effect.
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(z)
Compliance with and Liability under Environmental Laws. (i)
The Company and its subsidiaries (a) are, and at all prior times
were, in compliance with any and all applicable federal, state,
local and foreign laws, rules, regulations, requirements,
decisions, judgments, decrees and orders relating to pollution or
the protection of the environment, natural resources or human
health or safety, including those relating to the generation,
storage, treatment, use, handling, transportation, Release (as
defined below) or threat of Release of Hazardous Materials (as
defined below) (collectively, “Environmental Laws”),
(b) 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, (c) have not received notice of any actual or potential
liability under or relating to, or actual or potential violation
of, any Environmental Laws, including for the investigation or
remediation of any Release or threat of Release of Hazardous
Materials, and have no knowledge of any event or condition that
would reasonably be expected to result in any such notice, (d) are
not conducting or paying for, in whole or in part, any
investigation, remediation or other corrective action pursuant to
any Environmental Law at any location, and (e) are not a party to
any order, decree or agreement that imposes any obligation or
liability under any Environmental Law, and (ii) there are no costs
or liabilities associated with Environmental Laws of or relating to
the Company or its subsidiaries, except in the case of each of (i)
and (ii) above, for any such matter, as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect; and (iii) except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, (a)
there are no proceedings that are pending, or, to the knowledge of
the Company, to be contemplated, against the Company or any of its
subsidiaries under any Environmental Laws in which a governmental
entity is also a party, other than such proceedings regarding which
it is reasonably believed no monetary sanctions of $100,000 or more
will be imposed, (b) the Company and its subsidiaries are not aware
of any facts or issues regarding compliance with Environmental
Laws, or liabilities or other obligations under Environmental Laws,
including the Release or threat of Release of Hazardous Materials,
that could reasonably be expected to have a material effect on the
capital expenditures, earnings or competitive position of the
Company and its subsidiaries, and (c) none of the Company and its
subsidiaries anticipates material capital expenditures relating to
any Environmental Laws.
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(aa)
Hazardous Materials . There has been no storage, generation,
transportation, use, handling, treatment, Release or threat of
Release of Hazardous Materials by, relating to or caused by the
Company or any of its subsidiaries (or, to the knowledge of the
Company and its subsidiaries, any other entity (including any
predecessor) for whose acts or omissions the Company or any of its
subsidiaries is or could reasonably be expected to be liable) at,
on, under or from any property or facility now or previously owned,
operated or leased by the Company or any of its subsidiaries, or
at, on, under or from any other property or facility, in violation
of any Environmental Laws or in a manner or amount or to a location
that could reasonably be expected to result in any liability under
any Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance, waste,
pollutant, contaminant, compound, mixture, or constituent thereof,
in any form or amount, including petroleum (including crude oil or
any fraction thereof) and petroleum products, natural gas liquids,
asbestos and asbestos containing materials, naturally occurring
radioactive materials,
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brine, and drilling mud,
regulated or which can give rise to liability under any
Environmental Law. “Release” means any spilling,
leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, or migrating in, into or through the
environment, or in, into from or through any building or
structure.
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(bb)
Compliance with ERISA. (i) Except as disclosed in the
Registration Statement, Pricing Disclosure Package and Prospectus,
each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), for which the Company or any member of its
“Controlled Group” (defined as any organization which
is a member of a controlled group of corporations within the
meaning of Section 414 of the Internal Revenue Code of 1986, as
amended (the “Code”)) would have any liability (each, a
“Plan”) 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
Code, except for noncompliance that would not reasonably be
expected to result in material liability to the Company or its
subsidiaries; (ii) no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with
respect to any Plan excluding transactions effected pursuant to a
statutory or administrative exemption that would reasonably be
expected to result in a material liability to the Company or its
subsidiaries; (iii) for each Plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, the
minimum funding standard of Section 412 of the Code or Section 302
of ERISA, as applicable, has been satisfied (without taking into
account any waiver thereof or extension of any amortization period)
and is reasonably expected to be satisfied in the future (without
taking into account any waiver thereof or extension of any
amortization period); (iv) the fair market value of the assets of
each Plan exceeds the present value of all benefits accrued under
such Plan (determined based on those assumptions used to fund such
Plan); (v) no “reportable event” (within the meaning of
Section 4043(c) of ERISA) has occurred or is reasonably expected to
occur that either has resulted, or to the knowledge of the Company,
would reasonably be expected to result, in material liability to
the Company or its subsidiaries; (vi) neither the Company nor any
member of the Controlled Group has incurred, nor reasonably expects
to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC, in the ordinary
course and without default) in respect of a Plan (including a
“multiemployer plan,” within the meaning of Section
4001(a)(3) of ERISA); and (vii) there is no pending audit or
investigation by the Internal Revenue Service, the U.S. Department
of Labor, the Pension Benefit Guaranty Corporation or any other
governmental agency or any foreign regulatory agency with respect
to any Plan that could reasonably be expected to result in material
liability to the Company or its subsidiaries. None of the following
events has occurred or is reasonably likely to occur: (x) a
material increase in the aggregate amount of contributions required
to be made to all Plans by the Company or its subsidiaries in the
current fiscal year of the Company and its subsidiaries compared to
the amount of such contributions made in the Company and its
subsidiaries’ most recently completed fiscal year; or (y) a
material increa
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