Exhibit 1.1
4,615,385 Shares
ASCENT SOLAR TECHNOLOGIES,
INC.
Common Stock
UNDERWRITING
AGREEMENT
October 1, 2009
B ARCLAYS C APITAL I NC
.
As Representative of the several
Underwriters named in Schedule 1
attached hereto,
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Ascent Solar Technologies, Inc., a
Delaware corporation (the “ Company ”), proposes
to sell 4,615,385 shares (the “ Firm Stock ”) of
the Company’s common stock, par value $0.0001 per share (the
“ Common Stock ”). In addition, the Company
proposes to grant to the underwriters (the “
Underwriters ”) named in Schedule 1 attached to
this agreement (this “ Agreement ”) an option to
purchase up to 692,308 additional shares of the Common Stock on the
terms set forth in Section 3 (the “ Option Stock
”). The Firm Stock and the Option Stock, if purchased, are
hereinafter collectively called the “ Stock
.”
Contingent upon the closing of the
purchase by the Underwriters of the Stock as contemplated by this
Agreement, the Company will issue and sell to Norsk Hydro
Produksjon AS (“ Norsk Hydro ”) an aggregate of
769,230 shares of Common Stock (the “ Private Stock
”) pursuant to the terms of a Securities Purchase Agreement,
dated as of September 29, 2009 (the “ Securities Purchase
Agreement ”), between the Company and Norsk Hydro (the
“ Private Placement ”).
This is to confirm the agreement
concerning the purchase of the Stock from the Company by the
Underwriters.
1. Representations, Warranties
and Agreements of the Company . The Company represents,
warrants and agrees that:
(a) A registration statement on Form
S-3 relating to the Stock has (i) been prepared by the Company
in conformity with the requirements of the Securities Act of 1933,
as amended (the “ Securities Act ”), and the
rules and regulations (the “ Rules and Regulations
”) of the Securities and Exchange Commission (the “
Commission ”) thereunder; (ii) been filed with
the Commission under the Securities Act; and (iii) become
effective under the Securities Act. Copies of such registration
statement and any amendment thereto have been delivered by the
Company to you as the representative (the “
Representative ”) of the Underwriters. As used in this
Agreement:
(i) “ Applicable Time
” means 8:55 a.m. (New York City time), October 1,
2009;
(ii) “ Effective Date
” means any date as of which any part of such registration
statement relating to the Stock became, or is deemed to have
become, effective under the Securities Act in accordance with the
Rules and Regulations;
(iii) “ Issuer Free Writing
Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Stock;
(iv) “ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Stock included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to
the Stock;
(v) “ Pricing Disclosure
Package ” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with the information
included in Schedule 3 hereto and each Issuer Free Writing
Prospectus filed or used by the Company on or before the Applicable
Time, other than a road show that is an Issuer Free Writing
Prospectus under Rule 433 of the Rules and Regulations;
(vi) “ Prospectus
” means the final prospectus relating to the Stock, including
any prospectus supplement thereto relating to the Stock, as filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations; and
(vii) “ Registration
Statement ” means, collectively, the various parts of
such registration statement, each as amended as of the Effective
Date for such part, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration
statement.
Any reference to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be. Any
reference to the “most recent Preliminary Prospectus”
shall be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement or filed pursuant to Rule
424(b) prior to or on the date hereof (including, for purposes
hereof, any documents incorporated by reference therein prior to or
on the date hereof). Any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any document filed under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference in
such Preliminary Prospectus or the Prospectus, as the case may be;
and any reference to any amendment to the Registration Statement
shall be deemed to include any annual report of the Company on Form
10-K filed with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act after the Effective Date that is
incorporated by reference in the Registration Statement. The
Commission has not
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issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus
or suspending the effectiveness of the Registration Statement, and
no proceeding or examination for such purpose has been instituted
or threatened by the Commission.
(b) The Company was not at the time
of initial filing of the Registration Statement and at the earliest
time thereafter that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2)
of the Rules and Regulations) of the Stock, is not on the date
hereof and will not be on the applicable Delivery Date an
“ineligible issuer” (as defined in Rule 405). The
Company has been since the time of initial filing of the
Registration Statement and continues to be eligible to use Form S-3
for the offering of the Stock.
(c) The Registration Statement
conformed and will conform in all material respects on the
Effective Date and on the applicable Delivery Date, and any
amendment to the Registration Statement filed after the date hereof
will conform in all material respects when filed, to the
requirements of the Securities Act and the Rules and Regulations.
The most recent Preliminary Prospectus conformed, and the
Prospectus will conform, in all material respects when filed with
the Commission pursuant to Rule 424(b) and on the applicable
Delivery Date to the requirements of the Securities Act and the
Rules and Regulations. The documents incorporated by reference in
any Preliminary Prospectus or the Prospectus conformed, and any
further documents so incorporated will conform, when filed with the
Commission, in all material respects to the requirements of the
Exchange Act or the Securities Act, as applicable, and the rules
and regulations of the Commission thereunder.
(d) The Registration Statement did
not, as of the Effective Date, 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; provided that no representation or warranty is
made as to information contained in or omitted from the
Registration Statement in reliance upon and in conformity with
written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 8(e).
(e) The Prospectus will not, as of
its date and on the applicable Delivery Date, 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, in the light of the circumstances under which they were
made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representative by
or on behalf of any Underwriter specifically for inclusion therein,
which information is specified in Section 8(e).
(f) The documents incorporated by
reference in any Preliminary Prospectus or the Prospectus did not,
and any further documents filed and incorporated by reference
therein will not, when filed with the Commission, 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, in the light of the circumstances under which they were
made, not misleading.
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(g) The Pricing Disclosure Package
did not, as of the Applicable Time, contain an 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; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Company
through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(e).
(h) Each Issuer Free Writing
Prospectus (including, without limitation, any road show that is a
free writing prospectus under Rule 433), when considered together
with the Pricing Disclosure Package as of the Applicable Time, did
not 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, in the light of the circumstances under
which they were made, not misleading.
(i) Each Issuer Free Writing
Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the Rules and
Regulations on the date of first use, and the Company has complied
with any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Company has
not made any offer relating to the Stock that would constitute an
Issuer Free Writing Prospectus without the prior written consent of
the Representative. The Company has retained in accordance with the
Rules and Regulations all Issuer Free Writing Prospectuses that
were not required to be filed pursuant to the Rules and
Regulations.
(j) Hein & Associates LLP,
who have certified the financial statements and supporting
schedules and information of the Company that are included or
incorporated by reference in the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus and whose reports
appear or are incorporated by reference in the Registration
Statement, the most recent Preliminary Prospectus or the Prospectus
are independent public accountants as required by the Securities
Act, the Exchange Act and the Rules and Regulations.
(k) Subsequent to the respective
dates as of which information is given in the Registration
Statement and the most recent Preliminary Pricing Prospectus,
except as disclosed in the most recent Preliminary Prospectus,
(i) the Company has not declared or paid any dividends, or
made any other distribution of any kind, on or in respect of its
capital stock, (ii) there has not been any change in the
capital stock or long-term or short-term debt of the Company,
(iii) the Company has not sustained any material loss or
interference with its business or properties from fire, explosion,
flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and (iv) there has not been any
material adverse change or any development involving a prospective
material adverse change, whether or not arising from
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transactions in the ordinary course
of business, in or affecting the business, general affairs,
management, condition (financial or otherwise), results of
operations, stockholders’ equity, properties or prospects of
the Company, individually or taken as a whole (a “
Material Adverse Change ”). Since the date of the
latest balance sheet included, or incorporated by reference, in the
Registration Statement and the most recent Preliminary Prospectus,
the Company has not incurred or undertaken any liabilities or
obligations, whether direct or indirect, liquidated or contingent,
matured or unmatured, declared or paid any dividend on its capital
stock or entered into any transactions, including any acquisition
or disposition of any business or asset, which are material to the
Company, individually or taken as a whole, except for liabilities,
obligations and transactions which are disclosed in the most recent
Preliminary Prospectus and the Prospectus.
(l) The Company has an authorized
capitalization as set forth in the most recent Preliminary
Prospectus and the Prospectus, and all of the issued and
outstanding shares of capital stock of the Company are fully paid
and non-assessable and have been duly and validly authorized and
issued, in compliance with all applicable state, federal and
foreign securities laws and not in violation of or subject to any
preemptive or similar right that entitles any person to acquire
from the Company any Common Stock or other equity security of the
Company or any security convertible into, or exercisable or
exchangeable for, Common Stock or any other such security (any
“ Relevant Security ”), except for such rights
as have been fully satisfied or waived prior to the effectiveness
of the Registration Statement.
(m) The shares of the Stock to be
issued and sold by the Company to the Underwriters hereunder and
the shares of the Private Stock to be issued and sold by the
Company pursuant to the Securities Purchase Agreement have been
duly and validly authorized and, when issued and delivered in
accordance with this Agreement, will be duly and validly issued,
fully paid and non-assessable, will have been issued in compliance
with all applicable state, federal and foreign securities laws and
will not have been issued in violation of or subject to any
preemptive or similar right that entitles any person to acquire any
Relevant Security from the Company. The Common Stock, the Stock and
the Private Stock conform to the descriptions thereof contained in
the Registration Statement, the most recent Preliminary Prospectus
and the Prospectus. Except as disclosed in the most recent
Preliminary Prospectus, the Company has no outstanding warrants,
options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, or any contracts or commitments to
issue or sell, any Relevant Security. Except as disclosed in the
most recent Preliminary Prospectus, no holder of any Relevant
Security has any rights to require registration under the
Securities Act of any Relevant Security in connection with the
offer and sale of the shares of the Stock contemplated hereby, and
any such rights so disclosed have either been fully complied with
by the Company or effectively waived by the holders
thereof.
(n) The Company has no
“subsidiaries” (within the meaning of Rule 405 under
the Securities Act). The Company has been duly organized and
validly exists as a corporation, partnership or limited liability
company in good standing under the laws of its jurisdiction of
organization. The Company is duly qualified to do business and is
in good standing as a foreign corporation,
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partnership or limited liability
company in each jurisdiction in which the character or location of
its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which
(individually and in the aggregate) could not reasonably be
expected to have a material adverse effect on (i) the
business, general affairs, management, condition (financial or
otherwise), results of operations, stockholders’ equity,
properties or prospects of the Company, taken as a whole; or
(ii) the ability of the Company to consummate the Offering,
the Private Placement or any other transaction contemplated by this
Agreement or the most recent Preliminary Prospectus (a “
Material Adverse Effect ”).
(o) The Company has all requisite
power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses,
filings and permits of, with and from all judicial, regulatory and
other legal or governmental agencies and bodies and all third
parties, foreign and domestic (collectively, the “
Consents ”), to own, lease and operate its properties
and conduct its business as it is now being conducted and as
disclosed in the most recent Preliminary Prospectus, and each such
Consent is valid and in full force and effect, except in each case
as could not reasonably be expected to have a Material Adverse
Effect. The Company has not received notice of any investigation or
proceedings which, if decided adversely to the Company, could
reasonably be expected to result in, the revocation of, or
imposition of a materially burdensome restriction on, any such
Consent.
(p) The Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the Securities Purchase
Agreement. This Agreement and the Securities Purchase Agreement
have been duly and validly authorized, executed and delivered by
the Company.
(q) The issue and sale of the shares
of the Stock and the Private Stock, the compliance by the Company
with this Agreement and the Securities Purchase Agreement and the
consummation of the transactions herein and therein contemplated do
not and will not (i) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or
imposition of any Lien upon any property or assets of the Company
pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement, instrument, franchise, license or permit to
which the Company is a party or by which the Company or their
respective properties, operations or assets may be bound or
(ii) violate or conflict with any provision of the certificate
or articles of incorporation, by-laws, certificate of formation,
limited liability company agreement, partnership agreement or other
organizational documents of the Company, or (iii) violate or
conflict with any statute, law, rule, regulation, ordinance,
directive, judgment, decree or order of any judicial, regulatory or
other legal or governmental agency or body, domestic or
foreign.
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(r) No Consent of, with or from any
judicial, regulatory or other legal or governmental agency or body
or any third party, foreign or domestic, is required for the
execution, delivery and performance of this Agreement or the
Securities Purchase Agreement or consummation of the transactions
contemplated by this Agreement or the Securities Purchase
Agreement, except, in the case of this Agreement, the registration
under the Securities Act of the shares of the Stock and such
consents as may be required under state securities or blue sky laws
or the by-laws and rules of the Financial Industry Regulatory
Authority, Inc. (“ FINRA ”) in connection with
the purchase and distribution of the shares of the Stock by the
Underwriters, and, in the case of the Securities Purchase
Agreement, the filing of a Form D with the Commission, each of
which has been obtained and is in full force and effect.
(s) Except as disclosed in the most
recent Preliminary Prospectus, there is no judicial, regulatory,
arbitral or other legal or governmental proceeding or other
litigation or arbitration, domestic or foreign, pending to which
the Company is a party or of which any property, operations or
assets of the Company is the subject which, individually or in the
aggregate, if determined adversely to the Company, could reasonably
be expected to have a Material Adverse Effect; to the
Company’s knowledge, no such proceeding, litigation or
arbitration is threatened or contemplated; and the defense of all
such proceedings, litigation and arbitration against or involving
the Company could not reasonably be expected to have a Material
Adverse Effect.
(t) The financial statements,
including the notes thereto, and the supporting schedules included
or incorporated by reference in the most recent Preliminary
Prospectus present fairly, in all material respects, the financial
position as of the dates indicated and the cash flows and results
of operations for the periods specified of the Company; except as
otherwise stated in the most recent Preliminary Prospectus, said
financial statements comply as to form in all material respects
with the requirements of Regulation S-X under the Securities Act
and have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis
throughout the periods involved; and the supporting schedules
included in the most recent Preliminary Prospectus present fairly,
in all material respects, the information required to be stated
therein. No other financial statements or supporting schedules are
required to be included in the most recent Preliminary Prospectus
by the Securities Act, the Exchange Act or the Rules and
Regulations. The other financial and statistical information
included or incorporated by reference in the most recent
Preliminary Prospectus present fairly the information included
therein and have been prepared on a basis consistent with that of
the financial statements that are included or incorporated by
reference in the most recent Preliminary Prospectus and the books
and records of the respective entities presented
therein.
(u) The statistical,
industry-related and market-related data included in the most
recent Preliminary Prospectus are based on or derived from sources
which the Company reasonably and in good faith believes are
reliable and accurate, and such data agree with the sources from
which they are derived.
(v) The Common Stock has been
registered pursuant to Section 12(b) of the Exchange Act. The
shares of Common Stock have been approved for quotation on the
Nasdaq Global Market (“ Nasdaq ”), and the
Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under
the Exchange Act or de-listing the Common Stock from Nasdaq, nor
has the Company received any notification that the Commission or
Nasdaq is contemplating terminating such registration or
listing.
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(w) The Company maintains a system
of internal accounting and other controls sufficient to provide
reasonable assurances 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
United States generally accepted accounting principles and to
maintain accountability for assets, (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accounting for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(x) The Company maintains a system
of internal control over financial reporting (as such term is
defined in Rule 13a-15(f) under the Exchange Act) that complies in
all material respects with the applicable requirements of the
Exchange Act and has been designed by the Company’s principal
executive officer and principal accounting officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. The Company’s internal
control over financial reporting is effective and the Company is
not aware of any material weaknesses in its internal control over
financial reporting. Since the date of the latest audited financial
statements included or incorporated by reference in the most recent
Preliminary Prospectus, there has been no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
(y) The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e)
under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been
designed to ensure that material information relating to the
Company is made known to the Company’s principal executive
officer and principal accounting officer by others within those
entities; and such disclosure controls and procedures are
effective.
(z) There is and has been no failure
on the part of the Company or any of its directors or officers, in
their capacities as such, to comply in all material respects with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the “
Sarbanes-Oxley Act ”), including, without limitation,
Section 402 related to loans and Sections 302 and 906 related
to certifications.
(aa) Neither the Company nor any of
its affiliates (within the meaning of Rule 144 under the Securities
Act) has taken, directly or indirectly, any action which
constitutes or is designed to cause or result in, or which could
reasonably be expected to constitute, cause or result in, the
stabilization or manipulation of the price of any security to
facilitate the sale or resale of the shares of the
Stock.
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(bb) Neither the Company nor any of
its affiliates (within the meaning of Rule 144 under the Securities
Act) has, prior to the date hereof, made any offer or sale of any
securities which could be “integrated” (within the
meaning of the Securities Act and the Rules and Regulations) with
the offer and sale of the shares of the Stock pursuant to the
Registration Statement.
(cc) The statements set forth in the
most recent Preliminary Prospectus under the caption
“Description of Securities,” insofar as they purport to
constitute a summary of the terms of the Common Stock, and under
the captions “Shares Eligible for Future Sale” and
“Underwriting,” insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects.
(dd) The Company is not and, at all
times up to and including consummation of the transactions
contemplated by this Agreement, and after giving effect to
application of the net proceeds of the Offering as described in the
most recent Preliminary Prospectus, will not be required to
register as an “investment company” under the
Investment Company Act of 1940, as amended, and is not and will not
be an entity “controlled” by an “investment
company” within the meaning of such act.
(ee) Except as disclosed in the most
recent Preliminary Prospectus, there are no contracts, agreements
or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter
for a brokerage commission, finder’s fee or other like
payment in connection with the transactions contemplated by this
Agreement or, to the Company’s knowledge, any arrangements,
agreements, understandings, payments or issuance with respect to
the Company or any of its officers, directors, shareholders,
partners, employees or affiliates that may affect the
Underwriters’ compensation as determined by FINRA.
(ff) The Company owns or leases all
such properties as are necessary to the conduct of its business as
presently operated and as proposed to be operated as described in
the most recent Preliminary Prospectus. The Company has good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by it, in each case
free and clear of any and all Liens except such as are described in
the most recent Preliminary Prospectus or such as do not
(individually or in the aggregate) materially affect the value of
such property or materially interfere with the use made or proposed
to be made of such property by the Company; and any real property
and buildings held under lease or sublease by the Company are held
by them under valid, subsisting and enforceable leases with such
exceptions as are not material to, and do not materially interfere
with, the use made and proposed to be made of such property and
buildings by the Company. The Company has not received any notice
of any claim adverse to its ownership of any real or personal
property or of any claim against the continued possession of any
real property, whether owned or held under lease or sublease by the
Company.
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(gg) The Company owns or possesses
the valid right to use all (i) inventions (whether patentable
or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents, patent applications, and
patent disclosures, together with all provisionals, reissuances,
continuations, continuations-in-part, divisions, revisions,
extensions, and reexaminations thereof, (ii) trademarks,
service marks, trade dress, logos, brand names, trade names, domain
names and corporate names, and all applications, registrations, and
renewals in connection therewith, (iii) copyrightable works,
copyrights, software (including source code and object code
versions), and all applications, registrations, and renewals in
connection therewith, (iv) mask works and all applications,
registrations, and renewals in connection therewith, (v) all
trade secrets and confidential business information (including
ideas, research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, research records, records
of inventions, test information, customer and supplier lists,
pricing and cost information, and business and marketing plans and
proposals), and (vi) other intellectual property and
proprietary rights (collectively, “ Intellectual
Property ”) used in the conduct of its business as
presently conducted and as described in the most recent Preliminary
Prospectus. To the Company’s knowledge, the conduct of its
business does not and is not expected to infringe, misappropriate,
dilute, or otherwise violate the Intellectual Property rights of
any third party. The Company has not received any notice, claim,
charge or demand from any third party alleging that the conduct of
its business infringes, misappropriates, dilutes, or otherwise
violates the Intellectual Property rights of any third party. To
the Company’s knowledge, all Intellectual Property of the
Company that derives independent economic value, actual or
potential, from not being generally known to the public or to other
persons who can obtain economic value from its disclosure or use
has been maintained in confidence in accordance with protection
procedures that are adequate for protection, and in accordance with
procedures customarily used in the industry to protect rights of
like importance. The Company has not granted, licensed, or assigned
to any other person or entity any right to manufacture, have
manufactured, make, have made, assemble or otherwise market or sell
the current products and services of the Company or those products
and services described in the most recent Preliminary Prospectus.
To the Company’s knowledge, there is no infringement,
misappropriation, dilution, or other violation by third parties of
any Intellectual Property of the Company. There is no pending or,
to the Company’s knowledge, threatened, action, suit,
proceeding or claim by others challenging the legality, validity,
enforceability, registration, use or ownership of any Intellectual
Property of the Company, and the Company is unaware of any facts
which would form a reasonable basis for any such claim. There is no
pending or, to the Company’s knowledge, threatened, action,
suit, proceeding or claim by others that the Intellectual Property
of the Company infringes, misappropriates, dilutes, or otherwise
violates any Intellectual Property rights of others, and the
Company is unaware of any other fact which would form a reasonable
basis for any such claim.
(hh) The Company maintains insurance
in such amounts and covering such risks as the Company reasonably
considers adequate for the conduct of its business and the value of
its properties and as is customary for companies engaged in similar
businesses in similar industries, all of which insurance is in full
force and effect, except where the failure to maintain such
insurance could not reasonably be expected to have a Material
Adverse Effect. There are no material claims by the Company under
any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights
clause. The Company reasonably believes that it will be able to
renew its existing insurance as and when such coverage expires or
will be able to obtain replacement insurance adequate for the
conduct of the business and the value of its properties at a cost
that would not have a Material Adverse Effect.
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(ii) The Company has accurately
prepared and timely filed all federal, state, foreign and other tax
returns that are required to be filed by it and has paid or made
provision for the payment of all taxes, assessments, governmental
or other similar charges, including without limitation, all sales
and use taxes and all taxes which the Company is obligated to
withhold from amounts owing to employees, creditors and third
parties, with respect to the periods covered by such tax returns
(whether or not such amounts are shown as due on any tax return).
No deficiency assessment with respect to a proposed adjustment of
the Company’s federal, state, local or foreign taxes is
pending or, to the best of the Company’s knowledge,
threatened. The accruals and reserves on the books and records of
the Company in respect of tax liabilities for any taxable period
not finally determined are adequate to meet any assessments and
related liabilities for any such period and, since the year ended
December 31, 2008, the Company has not incurred any liability
for taxes other than in the ordinary course of its business. There
is no tax lien, whether imposed by any federal, state, foreign or
other taxing authority, outstanding against the assets, properties
or business of the Company.
(jj) No labor disturbance by the
employees of the Company exists or, to the best of the
Company’s knowledge, is imminent and the Company is not aware
of any existing or imminent labor disturbances by the employees of
any of its principal suppliers, manufacturers’, customers or
contractors, which, in either case (individually or in the
aggregate), could reasonably be expected to have a Material Adverse
Effect.
(kk) No “prohibited
transaction” (as defined in either Section 406 of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ ERISA ”) or Section 4975 of the Internal
Revenue Code of 1986, as amended from time to time (the “
Code ”)), “accumulated funding deficiency”
(as defined in Section 302 of ERISA) or other event of the
kind described in Section 4043(b) of ERISA (other than events
with respect to which the 30-day notice requirement under
Section 4043 of ERISA has been waived) has occurred with
respect to any employee benefit plan for which the Company would
have any liability which could (individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect; each
employee benefit plan for which the Company would have any
liability is in compliance in all material respects with applicable
law, including (without limitation) ERISA and the Code; the Company
has not incurred and does not expect to incur liability under Title
IV of ERISA with respect to the termination of, or withdrawal from
any “pension plan”; and each plan for which the Company
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified and nothing has
occurred to the Company’s knowledge, whether by action or by
failure to act, which could cause the loss of such
qualification.
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(ll) There has been no storage,
generation, transportation, handling, use, treatment, disposal,
discharge, emission, contamination, release or other activity
involving any kind of hazardous, toxic or other wastes, pollutants,
contaminants, petroleum products or other hazardous or toxic
substances, chemicals or materials (“ Hazardous
Substances ”) by, due to, on behalf of, or caused by the
Company (or, to the Company’s knowledge, any other entity for
whose acts or omissions the Company is or may be liable) upon any
property now or previously owned, operated, used or leased by the
Company, or upon any other property, which would be a violation of
or give rise to any liability under any applicable law, rule,
regulation, order, judgment, decree or permit, common law provision
or other legally binding standard relating to pollution or
protection of human health and the environment (“
Environmental Law ”), except for violations and
liabilities which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. There has
been no disposal, discharge, emission contamination or other
release of any kind at, onto or from any such property or into the
environment surrounding any such property of any Hazardous
Substances with respect to which the Company has knowledge, except
as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has not
agreed to assume, undertake or provide indemnification for any
liability of any other person under any Environmental Law,
including any obligation for cleanup or remedial action, except as
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. There is no pending or, to the
best of the Company’s knowledge, threatened administrative,
regulatory or judicial action, claim or notice of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company. No property of the Company
is subject to any Lien under any Environmental Law. The Company is
not subject to any order, decree, agreement or other individualized
legal requirement related to any Environmental Law.
(mm) The Company (i) is not in
violation of its certificate or articles of incorporation, by-laws,
certificate of formation, limited liability company agreement,
partnership agreement or other organizational documents,
(ii) is not in default under, and no event has occurred which,
with notice or lapse of time or both, would constitute a default
under or result in the creation or imposition of any Lien upon any
property or assets of the Company pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject, or (iii) is
not in violation of any statute, law, rule, regulation, ordinance,
directive, judgment, decree or order of any judicial, regulatory or
other legal or governmental agency or body, foreign or domestic,
except (in the cases of clauses (ii) and (iii) above) for
violations or defaults that could not (individually or in the
aggregate) reasonably be expected to have a Material Adverse
Effect.
(nn) All of the material
transactions and the current relationship between the Company and
ITN Energy Systems, Inc. (“ ITN ”) are fairly
and accurately described in the Registration Statement and the
Pricing Disclosure Package and there exists no material agreement
or understanding between the Company and ITN that is not fairly and
accurately described in the Registration Statement and the Pricing
Disclosure Package.
(oo) It is not necessary in
connection with the offer, sale and delivery of the Private Stock
in the Private Placement to register the sale of the Private Stock
to Norsk Hydro under the Act.
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Any certificate signed by or on
behalf of the Company and delivered to the Representative or to
counsel for the Underwriters shall be deemed to be a representation
and warranty by the Company to each Underwriter as to the matters
covered thereby.
2. Purchase of the Stock by the
Underwriters. On the basis of the representations and
warranties contained in, and subject to the terms and conditions
of, this Agreement, the Company agrees to sell 4,615,385 shares of
the Firm Stock to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the
number of shares of the Firm Stock set forth opposite that
Underwriter’s name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to
the Firm Stock shall be rounded among the Underwriters to avoid
fractional shares, as the Representative may determine.
In addition, the Company grants to
the Underwriters an option to purchase up to 692,308 additional
shares of Option Stock. Such option is exercisable in the event
that the Underwriters sell more shares of Common Stock than the
number of shares of Firm Stock in the offering and as set forth in
Section 5 hereof. Each Underwriter agrees, severally and not
jointly, to purchase the number of shares of Option Stock (subject
to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to
the total number of shares of Option Stock to be sold on such
Delivery Date as the number of shares of Firm Stock set forth in
Schedule 1 hereto opposite the name of such Underwriter
bears to the total number of shares of Firm Stock.
The price of both the Firm Stock and
any Option Stock purchased by the Underwriters shall be $6.09375
per share.
The Company shall not be obligated
to deliver any of the Firm Stock or Option Stock to be delivered on
the applicable Delivery Date, except upon payment for all such
Stock to be purchased on such Delivery Date as provided
herein.
3. Offering of Stock by the
Underwriters . Upon authorization by the Representative of the
release of the Firm Stock, the several Underwriters propose to
offer the Firm Stock for sale upon the terms and conditions to be
set forth in the Prospectus.
4. Delivery of and Payment for
the Stock . Delivery of and payment for the Firm Stock shall be
made at 10:00 A.M., New York City time, on the third full
business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the
Representative and the Company. This date and time are sometimes
referred to as the “Initial Delivery Date.” Delivery of
the Firm Stock shall be made to the Representative for the account
of each Underwriter against payment by the several Underwriters
through the Representative and of the respective aggregate purchase
prices of the Firm Stock being sold by the Company to or upon the
order of the Company of the purchase price by wire transfer in
immediately available funds to the accounts specified by the
Company. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition
of the obligation of each Underwriter hereunder. The Company shall
deliver the Firm Stock through the facilities of DTC unless the
Representative shall otherwise instruct.
13
The option granted in Section 3
will expire 30 days after the date of this Agreement and may be
exercised in whole or from time to time in part by written notice
being given to the Company by the Representative; provided
that if such date falls on a day that is not a business day, the
option granted in Section 3 will expire on the next succeeding
business day. Such notice shall set forth the aggregate number of
shares of Option Stock as to which the option is being exercised,
the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representative,
when the shares of Option Stock are to be delivered;
provided that this date and time shall not be earlier than
the Initial Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor
later than the fifth business day after the date on which the
option shall have been exercised. Each date and time the shares of
Option Stock are delivered is sometimes referred to as an
“Option Stock Delivery Date,” and the Initial Delivery
Date and any Option Stock Delivery Date are sometimes each referred
to as a “Delivery Date.”
Delivery of the Option Stock by the
Company and payment for the Option Stock by the several
Underwriters through the Representative shall be made at
10:00 A.M., New York City time, on the date specified in the
corresponding notice described in the preceding paragraph or at
such other date or place as shall be determined by agreement
between the Representative and the Company. On the Option Stock
Delivery Date, the Company shall deliver or cause to be delivered
the Option Stock to the Representative for the account of each
Underwriter against payment by the several Underwriters through the
Representative and of the respective aggregate purchase prices of
the Option Stock being sold by the Company to or upon the order of
the Company of the purchase price by wire transfer in immediately
available funds to the accounts specified by the Company. Time
shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. The Company shall deliver
the Option Stock through the facilities of DTC unless the
Representative shall otherwise instruct.
5. Further Agreements of the
Comp
