Exhibit 1.1
EXECUTION VERSION
Entegris, Inc.
14,000,000 Shares
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
September 10, 2009
To the Representative
named in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Entegris, Inc., a corporation
organized under the laws of Delaware (the “Company”),
proposes to sell to the several underwriters named in
Schedule II hereto (the “Underwriters”), for whom
you (the “Representatives”) are acting as
representatives, the number of shares of common stock, $0.01 par
value (“Common Stock”), of the Company set forth in
Schedule I hereto (the “Securities”) (said shares
to be issued and sold by the Company being hereinafter called the
“Underwritten Securities”). The Company also proposes
to grant to the Underwriters an option to purchase up to the number
of additional shares of Common Stock set forth in Schedule I
hereto to cover over-allotments, if any (the “Option
Securities”; the Option Securities, together with the
Underwritten Securities, being hereinafter called the
“Securities”). To the extent there are no additional
Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and
the terms Representatives and Underwriters shall mean either the
singular or plural as the context requires. Any reference herein to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus (each as defined in
Section 20 herein) shall be deemed to refer to and include all
information which is or deemed to be incorporated by reference
therein or otherwise deemed by the Act to be part of or included in
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be, on or
before the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, any Preliminary Prospectus or
the Final Prospectus, as the case may be; and any reference herein
to the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act which is incorporated or
deemed to be incorporated by reference in or otherwise deemed by
the Act to be part of or included after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus. Certain terms
used herein are defined in Section 20 hereof.
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1. Representations and
Warranties . The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the
requirements for use of Form S-3 under the Act, and has
prepared and filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto)
on Form S-3, including a related Base Prospectus, for
registration under the Act of the offering and sale of the
Securities. Such Registration Statement, including any amendments
thereto filed prior to the Execution Time, has become effective.
The Company may have filed with the Commission, as part of an
amendment to the Registration Statement or pursuant to Rule 424(b),
one or more preliminary prospectus supplements relating to the
Securities, each of which has previously been furnished to you. The
Company will file with the Commission a final prospectus supplement
relating to the Securities in accordance with Rule 424(b). As
filed, such final prospectus supplement shall contain, in all
material respects, all information required by the Act and the
rules thereunder, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x). The initial
Effective Date of the Registration Statement was not earlier than
the date three years before the Execution Time.
(b) On each Effective Date, the
Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and on the Closing Date
(as defined herein) and on any date on which Option Securities are
purchased, if such date is not the Closing Date (a
“settlement date”), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on each Effective Date and at the
Execution Time, the Registration Statement did not and will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the
date of any filing pursuant to Rule 424(b) and on the Closing
Date and any settlement date, the Final Prospectus (together with
any supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8
hereof.
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(c) (i) The Disclosure Package and
the price to the public, the number of Underwritten Securities and
the number of Option Securities to be included on the cover page of
the Final Prospectus, when taken together as a whole and
(ii) each electronic road show when taken together as a whole
with the Disclosure Package and the price to the public, the number
of Underwritten Securities and the number of Option Securities to
be included on the cover page of the Final Prospectus, does not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(d) (i) At the earliest time after
the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2)) of the Securities and (ii) as
of the Execution Time (with such date being used as the
determination date for purposes of this clause (ii)), the Company
was not and is not an Ineligible Issuer (as defined in Rule 405),
without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(e) Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated therein by reference and any prospectus
supplement deemed to be a part thereof that has not been superseded
or modified. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus based upon and
in conformity with written information furnished to the Company by
any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(f) Each of the Company and its
subsidiaries has been duly incorporated and is validly existing as
a corporation or limited liability company in good standing under
the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the
case may be, and to operate its properties and conduct its business
as described in the Disclosure Package and the Final Prospectus,
and is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction which
requires such qualification, except where the failure so to qualify
or to be in good standing would not result in a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto) (a “Material
Adverse Effect”).
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(g) All the outstanding shares of
capital stock of each subsidiary owned by the Company have been
duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Disclosure
Package and the Final Prospectus, all outstanding shares of capital
stock of the subsidiaries are owned by the Company (or in the case
of Pureline Co., Ltd., our join venture, 70% of its capital stock)
either directly or through wholly owned subsidiaries free and clear
of any perfected security interest or any other security interests,
claims, liens or encumbrances.
(h) There is no franchise, contract
or other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required (and
the Preliminary Prospectus contains in all material respects the
same description of the foregoing matters contained in the Final
Prospectus); and the statements in (i) the Preliminary
Prospectus and the Final Prospectus under the headings
“Summary — Recent Developments — Amended and
Restated Credit Agreement” and “Description of Capital
Stock”, (ii) the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2008, filed with
the Commission on March 2, 2009, under the headings
“Part I — Item 1 Business — Patents and
Other Intellectual Property Rights” and “Part I —
Item 1 Business — Governmental Regulation” and
“Part I — Item 3 Legal Proceedings”,
(iii) the Company’s Quarterly Report on Form 10-Q filed
for the fiscal quarter ended March 28, 2009, filed with the
Commission on May 6, 2009, under the heading “Part II
— Item 1 — Legal Proceedings” and
(iv) the Company’s Quarterly Report on Form 10-Q filed
for the fiscal quarter ended June 27, 2009, filed with the
Commission on July 24, 2009, under the heading “Part II
— Item 1 — Legal Proceedings” insofar as
such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or
proceedings.
(i) The Company is not and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Disclosure
Package and the Final Prospectus, will not be an “investment
company” as defined in the Investment Company Act of 1940, as
amended.
(j) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated
herein and in the Disclosure Package and the Final
Prospectus.
(k) Neither the issue and sale of
the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to,
(i) the charter or by-laws of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which the Company or any of its subsidiaries is a
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party or bound or to which its or
their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, except with respect
to clauses (ii) and (iii), for such defaults that would not
result in a Material Adverse Effect nor would result in a material
adverse effect on the transactions contemplated by this
Agreement.
(l) No holders of securities of the
Company have rights to the registration of such securities under
the Registration Statement.
(m) The consolidated historical
financial statements and related notes and schedules of the Company
and its consolidated subsidiaries included in the Preliminary
Prospectus, the Final Prospectus and the Registration Statement
present fairly the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption
“Selected Financial Information” in the Preliminary
Prospectus, the Final Prospectus and Registration Statement fairly
present, on the basis stated in the Preliminary Prospectus, the
Final Prospectus and the Registration Statement, the information
included therein; and the projected or forward-looking information
contained in the Disclosure Package or Prospectus under the
captions “Update on Third Quarter Net Sales” and
“Changes to Our Cost Structure” and the corresponding
disclosures in Issuer Free Writing Prospectuses (including the
third quarter 2009 net sales estimate, estimated EBITDA breakeven
levels of net sales and data relating to the assumed cost structure
(as defined therein)) is based on good faith estimates and
reasonable assumptions and reflects the proper application of those
estimates and assumptions.
(n) No action, suit or proceeding by
or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries or
its or their property is pending or, to the best knowledge of the
Company, threatened that (i) could reasonably be expected to
have a material adverse effect on the performance of this Agreement
or the consummation of any of the transactions contemplated hereby
or (ii) could reasonably be expected to have a Material
Adverse Effect.
(o) Each of the Company and each of
its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently
conducted.
(p) Neither the Company nor any
subsidiary is in violation or default of (i) any provision of
its charter or by-laws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property
is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or
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other authority having jurisdiction
over the Company or such subsidiary or any of its properties, as
applicable, except as to clauses (ii) and (iii) for such
violations or defaults that would not have a Material Adverse
Effect.
(q) KPMG LLP, who have certified
certain financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedules included in the
Disclosure Package and the Final Prospectus, are independent public
accountants with respect to the Company within the meaning of the
Act and the applicable published rules and regulations
thereunder.
(r) There are no transfer taxes or
other similar fees or charges under Federal law or the laws of any
state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the
issuance by the Company or sale by the Company of the
Securities.
(s) The Company has filed all tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would
not have a Material Adverse Effect and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a
Material Adverse Effect.
(t) No labor problem or dispute with
the employees of the Company or any of its subsidiaries exists or
is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of
its or its subsidiaries’ principal suppliers, contractors or
customers, that could have a Material Adverse Effect.
(u) The Company and each of its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; all policies of insurance insuring the Company or any of
its subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company
and its subsidiaries are in compliance with the terms of such
policies and instruments in all material respects; and there are no
claims by the Company or any of its subsidiaries under any such
policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause;
neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company
nor any such subsidiary has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect.
(v) No subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on
such subsidiary’s capital stock, from repaying to the Company
any loans or
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advances to such subsidiary from the
Company or from transferring any of such subsidiary’s
property or assets to the Company or any other subsidiary of the
Company, except as described in or contemplated by the Disclosure
Package and the Final Prospectus (exclusive of any supplement
thereto).
(w) The Company and its subsidiaries
possess all material licenses, certificates, permits and other
authorizations issued by all applicable authorities necessary to
conduct their respective businesses, and neither the Company nor
any such subsidiary has received any notice of proceedings relating
to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(x) The Company maintains a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company’s internal controls over financial reporting are
effective and the Company is not aware of any material weakness in
their internal controls over financial reporting.
(y) The Company and its subsidiaries
maintain “disclosure controls and procedures” (as such
term is defined in Rule 13a-15(e) under the Exchange Act); such
disclosure controls and procedures are effective.
(z) The Company has not taken,
directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(aa) The Company and its
subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received and are
in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) have not received notice
of any actual or potential liability under any environmental law,
except where such non-compliance with Environmental Laws, failure
to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, result in a
Material Adverse Effect. Except as set forth in the Disclosure
Package and the Final Prospectus, neither the Company nor any of
the subsidiaries has been named as a “potentially responsible
party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
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(bb) In the ordinary course of its
business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect.
(cc) None of the following events
has occurred or exists: (i) a failure to fulfill the
obligations, if any, under the minimum funding standards of
Section 302 of the United States Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), and the
regulations and published interpretations thereunder with respect
to a Plan, determined without regard to any waiver of such
obligations or extension of any amortization period that could have
a Material Adverse Effect; (ii) an audit or investigation by
the Internal Revenue Service, the U.S. Department of Labor, the
Pension Benefit Guaranty Corporation or any other federal or state
governmental agency or any foreign regulatory agency with respect
to the employment or compensation of employees by any of the
Company or any of its subsidiaries that could have a Material
Adverse Effect; (iii) any breach of any contractual
obligation, or any violation of law or applicable qualification
standards, with respect to the employment or compensation of
employees by the Company or any of its subsidiaries that could have
a Material Adverse Effect. None of the following events has
occurred or is reasonably likely to occur: (i) a material
increase in the aggregate amount of contributions required to be
made to all Plans in the current fiscal year of the Company and its
subsidiaries compared to the amount of such contributions made in
the most recently completed fiscal year of the Company and its
subsidiaries; (ii) a material increase in the
“accumulated post-retirement benefit obligations”
(within the meaning of Statement of Financial Accounting Standards
106) of the Company and its subsidiaries compared to the amount of
such obligations in the most recently completed fiscal year of the
Company and its subsidiaries; (iii) any event or condition
giving rise to a liability under Title IV of ERISA that could have
a Material Adverse Effect; or (iv) the filing of a claim by
one or more employees or former employees of the Company or any of
its subsidiaries related to their employment that could have a
Material Adverse Effect. For purposes of this paragraph, the term
“Plan” means a plan (within the meaning of
Section 3(3) of ERISA) subject to Title IV of ERISA with
respect to which the Company or any of its subsidiaries may have
any liability.
(dd) There is and has been no
failure on the part of the Company and any of the Company’s
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
Section 402 relating to loans and Sections 302 and 906
relating to certifications.
(ee) Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that
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would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
(ff) The operations of the Company
and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting
requirements and the money laundering statutes and the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened.
(gg) Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is currently subject to any sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(hh) Except as set forth in the
Preliminary Prospectus and the Final Prospectus, and except as
could not reasonably be expected to have a Material Adverse Effect
on the Company and its subsidiaries, taken as a whole, the Company
and its subsidiaries own, possess, license or have other rights to
use, on reasonable terms, all patents, patent applications, trade
and service marks, trade and service mark registrations, trade
names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of
the Company’s business as now conducted or as proposed in the
Final Prospectus to be conducted. Except as set forth in the
Preliminary Prospectus and the Final Prospectus (a) to the
Company’s best knowledge, there are no rights of third
parties to any such Intellectual Property; (b) to the
Company’s best knowledge, there is no material infringement
by third parties of any such Intellectual Property; (c) there
is no pending or, to the Company’s best knowledge, threatened
action, suit, proceeding or claim by others challenging the
Company’s rights in or to any such Intellectual Property, and
the Company is unaware of any facts which would form a reasonable
basis for any such claim; (d) to the Company’s best
knowledge, there is no pending or
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threatened action, suit, proceeding
or claim by others challenging the validity or scope of any such
Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for any such claim;
(e) there is no pending or, to the Company’s best
knowledge, threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any other fact which would
form a reasonable basis for any such claim; (f) to the
Company’s best knowledge, there is no limitation on the
Company’s freedom to operate under any U.S. patent or
published U.S. patent application or any Intellectual Property
described in the Disclosure Package and the Final Prospectus as
being owned by or licensed to the Company or that interferes with
the issued or pending claims of any such Intellectual Property; and
(g) there is no prior art of which the Company is aware that
may render any U.S. patent held by the Company invalid or any U.S.
patent application held by the Company unpatentable which has not
been disclosed to the U.S. Patent and Trademark Office, except, in
the case of any of clauses (b), (c), (d) (e), (f) and
(g) above, for any such infringement by third parties or any
such pending or threatened suit, action proceeding or claim as
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(ii) Except as disclosed in the
Registration Statement, the Disclosure Package and the Final
Prospectus, including as to Citigroup Global Markets Inc., ABN AMRO
Incorporated and PNC Capital Markets LLC, the Company (i) does
not have any material lending or other relationship with any
bank or lending affiliate of the Underwriters named in Schedule II
hereto and (ii) does not intend to use any of the proceeds
from the sale of the Securities hereunder to repay any outstanding
debt owed to any affiliate of Citigroup Global Markets Holdings
Inc.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale .
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto, the number of
Underwritten Securities set forth opposite such Underwriter’s
name in Schedule II hereto.
(b) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company hereby grants an option to the
several Underwriters to purchase, severally and not jointly, up to
the number of Option Securities set forth in Schedule I hereto at
the same purchase price per share as the Underwriters shall pay for
the Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities by
the Underwriters. Said option may be exercised in whole or in part
at any time on or before the 30th day after the date of the Final
Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of Option
Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of Option
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Securities to be purchased by each
Underwriter shall be the same percentage of the total number of
Option Securities to be purchased by the several Underwriters as
such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
3. Delivery and Payment .
Delivery of and payment for the Underwritten Securities and the
Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business
Day immediately preceding the Closing Date) shall be made on the
date and at the time specified in Schedule I hereto or at such
time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein
called the “Closing Date”). Delivery of the Securities
shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company.
Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise
instruct.
If the option provided for in
Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the
Representatives, at 388 Greenwich Street, New York, New York, on
the date specified by the Representatives (which shall be within
three Business Days after exercise of said option) for the
respective accounts of the several Underwriters, against payment by
the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to an account specified by the
Company. If settlement for the Option Securities occurs after the
Closing Date, the Company will deliver to the Representatives on
the settlement date for the Option Securities, and the obligation
of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters;
Appointment of QIU . It is understood that the several
Underwriters propose to offer the Securities for sale to the public
as set forth in the Final Prospectus. The Company hereby confirms
its engagement of Goldman, Sachs & Co. as, and Goldman,
Sachs & Co. hereby confirms its agreement with the Company
to render services as, a “qualified independent
underwriter” within the meaning of Rule 2720(b)(15) of the
National Association of Securities Dealers, Inc. with respect to
the offering and sale of the Securities. Goldman, Sachs &
Co., in its capacity as qualified independent underwriter and not
otherwise, is referred to herein as the “QIU”. As
compensation for the services of the QIU hereunder, the Company
agrees to pay the QIU $5,000 on the Closing Date for the
Underwritten Securities.
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5. Agreements . The Company
agrees with the several Underwriters that:
(a) Prior to the termination of the
offering of the Securities, the Company will not file any amendment
of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus or
any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object. The Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed in a
form approved by the Representatives with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission,
(ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (iii) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution
or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or the occurrence of any such
suspension or objection to the use of the Registration Statement
and, upon such issuance, occurrence or notice of objection, to
obtain as soon as possible the withdrawal of such stop order or
relief from such occurrence or objection, including, if necessary,
by filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such
amendment or new registration statement declared effective as soon
as practicable.
(b) If, at any time prior to the
filing of the Final Prospectus pursuant to Rule 424(b), any event
occurs as a result of which the Disclosure Package would include
any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light
of the circumstances under which they were made or the
circumstances then prevailing not misleading, the Company will
(i) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented;
(ii) amend or supplement the Disclosure Package to correct
such statement or omission; and (iii) supply any amendment or
supplement to you in such quantities as you may reasonably
request.
(c) If, at any time when a
prospectus relating to the Securities is required to be delivered
under the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), any event occurs as a
result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the
light of the circumstances under which they were made at such time
not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or
supplement the
12
Final Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final
Prospectus, the Company promptly will (i) notify the
Representatives of any such event, (ii) prepare and file with
the Commission, subject to the second sentence of paragraph
(a) of this Section 5, an amendment or supplement or new
registration statement which will correct such statement or
omission or effect such compliance, (iii) use its best efforts
to have any amendment to the Registration Statement or new
registration statement declared effective as soon as practicable in
order to avoid any disruption in use of the Final Prospectus and
(iv) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(d) As soon as practicable, the
Company will make generally available to its security holders and
to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158.
(e) The Company will furnish to the
Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172), as many copies of each Preliminary
Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing
or other production of all documents relating to the
offering.
(f) The Company will arrange, in
cooperation with the Underwriters, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the
distribution of the Securities; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(g) The Company agrees that, unless
it has or shall have obtained the prior written consent of the
Representatives, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has or shall have obtained,
as the case may be, the prior written consent of the Company, it
has not made and will not make any offer relating to the Securities
that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a “free writing prospectus”
(as defined in Rule 405) required to be filed by the Company with
the Commission or retained by the Company under Rule 433; provided
that the prior written consent of the parties hereto shall be
deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule III hereto and any electronic
road show. Any such free writing prospectus consented to by the
Representatives or the Company is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company agrees
that (x) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus
13
and (y) it has complied and
will comply, as the case may be, with the requirements of Rules 164
and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission,
legending and record keeping.
(h) The Company will not, without
the prior written consent of Citigroup Global Markets Inc., offer,
sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of
the Company or any person in privity with the Company or any
affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act,
any other shares of Common Stock or any securities convertible
into, or exercisable, or exchangeable for, shares of Common Stock;
or publicly announce an intention to effect any such transaction,
until the Business Day set forth on Schedule I hereto,
provided , however , that the Company may issue and
sell Common Stock pursuant to any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time or in reliance upon NASDAQ Listing
Rule 5635(c)(4) contemplated at the Execution Time and the Company
may issue Common Stock issuable upon the conversion of securities
or the exercise of warrants outstanding at the Execution
Time.
(i) The Company will not take,
directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the
costs and expenses relating to the following matters: (i) the
preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the
Final Prospectus and each Issuer Free Writing Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and all
amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection
with the original issuance and sale of the Securities;
(iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with
the offering of the Securities; (v) the registration of the
Securities under the Exchange Act and the listing of the Securities
on The NASDAQ Global Select Market; (vi) any registration or
qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states
14
(including filing fees and the
reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any
filings required to be made with the Financial Industry Regulatory
Authority, Inc. (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such filings);
(viii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations
to prospective purchasers of the Securities; (ix) the fees and
expenses of the Company’s accountants and the fees and
expenses of counsel (including local and special counsel) for the
Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder. It is
understood that, subject to this section and Section 7, the
Underwriters will pay all of their costs and expenses, including
fees and disbursements of their counsel.
6. Conditions to the Obligations
of the Underwriters . The obligations of the Underwriters to
purchase the Underwritten Securities and the Option Securities, as
the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained
herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy
of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional
conditions:
(a) The Final Prospectus, and any
supplement thereto, have been filed in the manner and within the
time period required by Rule 424(b); any other material
required to be filed by the Company pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433;
and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have requested
and caused Ropes & Gray LLP, counsel for the Company, to
have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, substantially in
the form set forth in Exhibits A-1 and A-2.
(c) The Company shall have requested
and caused Mr. Peter Walcott, Esq., general counsel to the
Company, to have furnished to the Representatives his opinion,
dated the Closing Date and addressed to the Representatives,
substantially in the form set forth in Exhibit B.
(d) The Representatives shall have
received from Weil, Gotshal & Manges LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Registration Statement, the Disclosure
Package, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
15
(e) The Company shall have furnished
to the Representatives a certificate of the Company, signed by the
Chairman of the Board or the President and the principal financial
or accounting officer of the Company, dated the Closing Date, to
the effect that the signers of such certificate have carefully
examined the Registration Statement, the Disclosure Package, the
Final Prospectus and any supplements or amendments thereto, as well
as each electronic road show used in connection with the offering
of the Securities, and this Agreement and that:
(i) the representations and
warranties of the Company in this Agreement are true and correct on
and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement or any notice objecting
to its use has been issued and no proceedings for that purpose have
been instituted or, to the Company’s knowledge, threatened;
and
(iii) since the date of the most
recent financial statements included in the Disclosure Package and
the Final Prospectus (exclusive of any supplement thereto), there
has been no Material Adverse Effect.
(f) The Company shall have requested
and caused KPMG LLP to have furnished to the Representatives, at
the Execution Time and at the Closing Date, letters, (which may
refer to letters previously delivered to one or more of the
Representatives), dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the
Commission thereunder and that they have performed a review of the
unaudited interim financial information of the Company for the
six-month period ended June 27, 2009, and as at June 27,
2009, in accordance with Statement on Auditing Standards
No. 100, and substantially in the form set forth in Exhibit
C.
(g) Subsequent to the Execution Time
or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any amendment or supplement
thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in
paragraph (f) of this Section 6 or (ii) any change,
or any development involving a prospective change, in or affecting
the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof), the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement
thereto).
16
(h) Subsequent to the Execution
Time, there shall not have been any decrease in the rating of any
of the Company’s debt securities by any “nationally
recognized statistical rating organization” (as defined for
purposes of Rule 436(g) under the Act) or any notice given of
any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the
direction of the possible change.
(i) Prior to the Closing Date, the
Company shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
(j) The Securities shall have been
listed and admitted and authorized for trading on The NASDAQ Global
Select Market, and satisfactory evidence of such actions shall have
been provided to the Representatives.
(k) At the Execution Time, the
Company shall have furnished to the Representatives a letter
substantially in the form of Exhibit D hereto from each
director of the Company and Section 16 officers addressed to
the Representatives.
If any of the conditions specified
in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement
and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in
writing.
The documents required to be
delivered by this Section 6 shall be delivered at the office
of Weil, Gotshal & Manges LLP, counsel for the
Underwriters, at 767 Fifth Avenue, New York, New York, on the
Closing Date.
7. Reimbursement of
Underwriters’ Expenses . If the sale of the Securities
provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof
is not satisfied, because of any termination pursuant to
Section 10 hereof or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason
of
