Exhibit 1.1
2,250,000 Units
VERENIUM
CORPORATION
UNDERWRITING
AGREEMENT
October 6, 2009
LAZARD CAPITAL MARKETS
LLC
30 Rockefeller Plaza
New York, New York 10020
Dear Sirs:
1. I NTRODUCTION . Verenium Corporation, a Delaware corporation
(the “ Company ”), proposes to issue and sell to
the Underwriter, pursuant to the terms and conditions of this
Underwriter Agreement (this “ Agreement ”), up
to an aggregate of 2,250,000 units (the “ Units
”) with each Unit consisting of (i) one share (a “
Share ”) of common stock, $0.001 par value per share
(the “ Common Stock ”) of the Company and
(ii) one warrant to purchase 0.40 of a share of Common Stock
(the “ Warrants ”). Units will not be issued or
certified. The shares of Common Stock and Warrants are immediately
separable and will be issued separately. The terms and conditions
of the Warrants are set forth in the form of Exhibit A
attached hereto. The Company hereby confirms that Lazard Capital
Markets LLC (“ LCM ,” or the “
Underwriter ”) acted as the Underwriter in accordance
with the terms and conditions hereof.
2. D ELIVERY AND P AYMENT . On the basis of the representations,
warranties and agreements of the Company herein contained, and
subject to the terms and conditions set forth in this
Agreement:
2.1 The Underwriter agrees to
purchase from the Company an aggregate of 2,250,000 Units at a
purchase price of $6.00 per share of Common Stock (the “
Purchase Price ”).
2.2 Payment of the Purchase Price
for, and delivery of, the Shares and Warrants contained in the
Units shall be made at the Closing (as set forth in Section 4
hereof) or at such other time and date as the Underwriter and the
Company determine pursuant to Rule 15c6-1(a) under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), and upon satisfaction of the conditions set forth in this
Agreement, the Company shall deliver the Shares and Warrants, which
shall be registered in the name or names and shall be in such
denominations as the Underwriter may request at least one
(1) business day before the Closing Date (as defined in
Section 4 ), to the Underwriter, which delivery,
(a) with respect to the Shares shall be made through the
facilities of the Depository Trust Company’s DWAC system, and
(b) with respect to the Warrants, shall be made by physical
delivery to be received by the Underwriter no later than one
(1) business day following the Closing Date.
2.3 Prior to the earlier of
(i) the date on which this Agreement is terminated and
(ii) the Closing Date, the Company shall not, without the
prior written consent of the Underwriter, solicit or accept offers
to purchase shares of the Common Stock or securities convertible
into Common Stock (other than pursuant to the exercise of options
or warrants to purchase shares of Common Stock that are outstanding
at the date hereof) otherwise than through the Underwriter in
accordance herewith.
2.4 No Units which the Company has
agreed to sell pursuant to this Agreement shall be deemed to have
been purchased and paid for, or sold by the Company, until such
Shares and Warrants contained in the Units shall have been
delivered to the Underwriter thereof against payment by the
Underwriter. If the Company shall default in its obligations to
deliver the Shares or Warrants contained in the Units to the
Underwriter, the Company shall indemnify and hold the Underwriter
harmless against any loss, claim, damage or expense arising from or
as a result of such default by the Company in accordance with the
procedures set forth in Section 8(c) herein.
3. R EPRESENTATIONS AND W ARRANTIES OF THE C OMPANY . The Company represents and warrants to, and
agrees with, the Underwriter that:
(a) The Company has prepared and
filed in conformity with the requirements of the Securities Act of
1933, as amended (the “ Securities Act ”), and
published rules and regulations thereunder (the “ Rules
and Regulations ”) adopted by the Securities and Exchange
Commission (the “ Commission ”) a
“shelf” Registration Statement (as hereinafter defined)
on Form S-3 (File No. 333-147403), which became effective as
of January 14, 2008 (the “ Effective Date
”), including a base prospectus relating to the Units (the
“ Base Prospectus ”), and such amendments and
supplements thereto as may have been required to the date of this
Agreement. The term “ Registration Statement ”
as used in this Agreement means the registration statement
(including all exhibits, financial schedules and all documents and
information deemed to be a part of the Registration Statement
pursuant to Rule 430A of the Rules and Regulations), as amended
and/or supplemented to the date of this Agreement, including the
Base Prospectus. The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus has been issued by the
Commission and no proceedings for that purpose have been instituted
or, to the knowledge of the Company, are threatened by the
Commission. The Company, if required by the Rules and Regulations
of the Commission, will file the Prospectus (as defined below),
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations. The term “ Prospectus ” as used in
this Agreement means the Prospectus, in the form in which it is to
be filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations, or, if the Prospectus is not to be filed with the
Commission pursuant to Rule 424(b), the Prospectus in the form
included as part of the Registration Statement as of the Effective
Date, except that if any revised prospectus or prospectus
supplement shall be provided to the Underwriter by the Company for
use in connection with the offering and sale of the Units which
differs from the Prospectus (whether or not such revised prospectus
or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Rules and Regulations), the term
“ Prospectus ” shall refer to such revised
prospectus or prospectus
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supplement, as the case may be, from
and after the time it is first provided to the Underwriter for such
use (or in the form first made available to the Underwriter by the
Company to meet requests of prospective purchasers pursuant to Rule
173 under the Securities Act). Any preliminary prospectus or
prospectus subject to completion included in the Registration
Statement or filed with the Commission pursuant to Rule 424 of the
Rules and Regulations is hereafter called a “ Preliminary
Prospectus. ” Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), on or before the last to
occur of the Effective Date, the date of the Preliminary
Prospectus, or the date of the Prospectus, and any reference herein
to the terms “amend,” “amendment,” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include (i) the filing of any document
under the Exchange Act after the Effective Date, the date of such
Preliminary Prospectus or the date of the Prospectus, as the case
may be, which is incorporated by reference and (ii) any such
document so filed. If the Company has filed an abbreviated
registration statement to register additional securities pursuant
to Rule 462(b) under the Rules and Regulations (the “
462(b) Registration Statement ”), then any reference
herein to the Registration Statement shall also be deemed to
include such 462(b) Registration Statement.
(b) As of the Applicable Time (as
defined below) and as of the Closing Date, neither (i) any
General Use Free Writing Prospectus (as defined below) issued at or
prior to the Applicable Time, and the Pricing Prospectus (as
defined below) and the information included on Schedule A
hereto, all considered together (collectively, the “
General Disclosure Package ”), (ii) any
individual Limited Use Free Writing Prospectus (as defined below),
nor (iii) the bona fide electronic road show (as defined in
Rule 433(h)(5) of the Rules and Regulations), if any, that has been
made available without restriction to any person, when considered
together with the General Disclosure Package, included or will
include, any untrue statement of a material fact or omitted or as
of the Closing Date will 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 information contained in or
omitted from any Issuer Free Writing Prospectus, in reliance upon,
and in conformity with, written information furnished to the
Company by the Underwriter specifically for inclusion therein,
which information the parties hereto agree is limited to the
Underwriter’s Information (as defined in
Section 17 ). As used in this paragraph (b)
and elsewhere in this Agreement:
“ Applicable
Time ” means 5:00 P.M., New York time, on the date of
this Agreement.
“ General Use Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is identified on Schedule A to this
Agreement.
“ Issuer Free Writing
Prospectus ” means any “ issuer free writing
prospectus, ” as defined in Rule 433 of the Rules and
Regulations relating to the Units in the form filed or required to
be filed with the Commission or, if not required to be filed, in
the form retained in the Company’s records pursuant to Rule
433(g) of the Rules and Regulations.
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“ Limited Use Free
Writing Prospectuses ” means any Issuer Free Writing
Prospectus that is not a General Use Free Writing
Prospectus.
“ Pricing
Prospectus ” means the Preliminary Prospectus, if
any, and the Base Prospectus, each as amended and supplemented
immediately prior to the Applicable Time, including any document
incorporated by reference therein and any prospectus supplement
deemed to be a part thereof.
(c) No order preventing or
suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus relating to the Offering has
been issued by the Commission, and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act has been
instituted or, to the knowledge of the Company, threatened by the
Commission, and each Preliminary Prospectus (if any), at the time
of filing thereof, conformed in all material respects to the
requirements of the Securities Act and the Rules and Regulations,
and 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; provided,
however , that the Company makes no representations or
warranties as to information contained in or omitted from any
Preliminary Prospectus, in reliance upon, and in conformity with,
written information furnished to the Company by the Underwriter
specifically for inclusion therein, which information the parties
hereto agree is limited to the Underwriter’s Information (as
defined in Section 17 ).
(d) At the time the Registration
Statement became effective, at the date of this Agreement and at
the Closing Date, the Registration Statement conformed and will
conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and 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
to make the statements therein not misleading; the Prospectus, at
the time the Prospectus was issued and at the Closing Date,
conformed and will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations
and did not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however , that the
foregoing representations and warranties in this paragraph
(d) shall not apply to information contained in or
omitted from the Registration Statement or the Prospectus in
reliance upon, and in conformity with, written information
furnished to the Company by the Underwriter specifically for
inclusion therein, which information the parties hereto agree is
limited to the Underwriter’s Information (as defined in
Section 17 ).
(e) Each Issuer Free Writing
Prospectus, if any, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Units or until any earlier date that the Company notified or
notifies the Underwriter as described in Section 5(e) ,
did not, does not and will not include any information that
conflicted,
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conflicts or will conflict with the
information contained in the Registration Statement, Pricing
Prospectus or the Prospectus, including any document incorporated
by reference therein and any prospectus supplement deemed to be a
part thereof that has not been superseded or modified, or includes
an untrue statement of a material fact or omitted or would omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by
the Underwriter specifically for inclusion therein, which
information the parties hereto agree is limited to the
Underwriter’s Information (as defined in
Section 17 ).
(f) The documents incorporated by
reference in the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and none of such documents contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder 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 to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
(g) The Company is not an
“ineligible issuer” (as defined in Rule 405 under the
Securities Act) as of the eligibility determination date for
purposes of Rules 164 and 433 under the Securities Act with respect
to the Offering. The Company has not, directly or indirectly,
distributed and will not distribute any offering material in
connection with the Offering other than any Preliminary Prospectus,
the Prospectus and other materials, if any, permitted under the
Securities Act and consistent with Section 5(b) below.
The Company will file with the Commission all Issuer Free Writing
Prospectuses (other than a “road show,” as described in
Rule 433(d)(8) of the Rules and Regulations), if any, in the time
and manner required under Rules 163(b)(2) and 433(d) of the Rules
and Regulations.
(h) The Company and each of its
subsidiaries (as defined in Section 15 ) have been duly
organized and are validly existing as corporations or other legal
entities in good standing under the laws of their respective
jurisdictions of organization. The Company and each of its
subsidiaries are duly qualified to do business and are in good
standing as foreign corporations or other legal entities in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification and have all power and authority (corporate or
other) necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the
failure to so qualify or have such power or
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authority would not (i) have,
singularly or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, assets,
business or prospects of the Company and its subsidiaries taken as
a whole, or (ii) impair in any material respect the ability of
the Company to perform its obligations under this Agreement or to
consummate any transactions contemplated by the Agreement, the
General Disclosure Package or the Prospectus (any such effect as
described in clauses (i) or (ii), a “ Material
Adverse Effect ”). The Company owns or controls, directly
or indirectly, only the following corporations, partnerships,
limited liability partnerships, limited liability companies,
associations or other entities: (i) Verenium Biofuels
Corporation, a Delaware corporation; (ii) Verenium Biofuels
Louisiana LLC, a Louisiana limited liability company (a
wholly-owned subsidiary of Verenium Biofuels Corporation);
(iii) Verenium Biofuels Texas LLC, a Delaware limited
liability company (a wholly-owned subsidiary of Verenium Biofuels
Corporation); (iv) Galaxy Biofuels LLC, a Delaware limited
liability company (a jointly-owned subsidiary of Verenium Biofuels
Corporation and BP Biofuels North America LLC); and
(v) Highlands Ethanol, LLC, a Delaware limited liability
company (a jointly-owned subsidiary of Verenium Biofuels
Corporation and BP Biofuels North America LLC).
(i) The Company has the full right,
power and authority to enter into this Agreement, and to perform
and to discharge its obligations hereunder and thereunder; and this
Agreement has been duly authorized, executed and delivered by the
Company, and constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms.
(j) The shares of Common Stock to be
issued and sold by the Company to the Underwriter hereunder and the
shares of Common Stock issuable upon the exercise of the Warrants
(the “ Warrant Shares ”) have been duly and
validly authorized and the Common Stock, when issued and delivered
against payment therefor as provided herein and the Warrant Shares,
when issued and delivered against payment therefor as provided in
the Warrants, will be duly and validly issued, fully paid and
nonassessable and free of any preemptive or similar rights and will
conform to the description thereof contained in the General
Disclosure Package and the Prospectus.
(k) The Company has an authorized
capitalization as set forth in the Pricing Prospectus, and all of
the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and
nonassessable, have been issued in compliance with federal and
state securities laws, and conform to the description thereof
contained in the General Disclosure Package and the Prospectus. As
of June 30, 2009, there were 99,277,612 shares of Common Stock
issued and outstanding and no shares of Preferred Stock, par value
$0.001 of the Company issued and outstanding and 57,048,165 shares
of Common Stock were issuable upon the exercise of all options,
warrants and convertible securities outstanding as of such date.
Since such date, the Company has not issued any securities, other
than Common Stock of the Company issued pursuant to the exercise of
stock options previously outstanding under the Company’s
stock plan or the issuance of restricted Common Stock pursuant to
employee stock purchase plans, otherwise than as set forth or
contemplated in the General Disclosure Package. All of the stock
options, warrants and other rights to purchase or exchange any
securities for shares
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of the Company’s capital stock
have been duly authorized and validly issued by all corporate
action of the Company, and were issued in compliance with US
federal and state securities laws. None of the outstanding shares
of Common Stock was issued in violation of any preemptive rights,
rights of first refusal or other similar rights to subscribe for or
purchase securities of the Company. There are no authorized or
outstanding shares of capital stock, options, warrants, preemptive
rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or any of its
subsidiaries other than those described above or accurately
described in the General Disclosure Package. The description of the
Company’s stock option, stock bonus and other stock plans or
arrangements, and the stock options or other rights granted
thereunder, as described in the General Disclosure Package and the
Prospectus, accurately and fairly present the information required
to be shown with respect to such plans, arrangements, stock options
and rights.
(l) All the outstanding shares of
capital stock or other equity interests of each subsidiary of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable and, except to the extent set forth in the
General Disclosure Package or the Prospectus, are owned by the
Company directly or indirectly through one or more wholly-owned
subsidiaries, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer or any other
claim of any third party, other than in connection with the Pledge
and Security Agreement dated September 1, 2009 by and between
the Company and Wells Fargo Bank, National Association, as
collateral agent for the secured parties identified
therein.
(m) The execution, delivery and
performance of this Agreement by the Company, the issue and sale of
the Units by the Company and the consummation of the transactions
contemplated hereby and thereby will not (with or without notice or
lapse of time or both) (i) conflict with or result in a breach
or violation of any of the terms or provisions of, constitute a
default or Debt Repayment Triggering Event (as defined below)
under, give rise to any right of termination or other right or the
cancellation or acceleration of any right or obligation or loss of
a benefit under, or give rise to the creation or imposition of any
lien, encumbrance, security interest, claim or charge upon any
property or assets of the Company or any subsidiary pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, which is
material to the business of the Company and its subsidiaries taken
as a whole, (ii) result in any violation of the provisions of
the charter or by-laws (or analogous governing instruments, as
applicable) of the Company or any of its subsidiaries or
(iii) result in any violation of any law, statute, rule,
regulation, judgment, order or decree of any court or governmental
agency or body, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets. A “ Debt Repayment Triggering Event ”
means any event or condition that gives, or with the giving of
notice or lapse of time would give the holder of any note,
debenture or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
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(n) Except for the registration of
the Common Stock and Warrants under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws, the Financial Industry
Regulatory Authority (“ FINRA ”) and the NASDAQ
Global Market (the “ NASDAQ GM ”) in connection
with the offering and sale of the Units by the Company, and the
listing of the Common Stock and the Warrant Shares on the NASDAQ
GM, no consent, approval, authorization or order of, or filing,
qualification or registration with, any court or governmental
agency or body, foreign or domestic, which has not been made,
obtained or taken and is not in full force and effect, is required
for the execution, delivery and performance of this Agreement by
the Company, the offer or sale of the Units or the consummation of
the transactions contemplated hereby or thereby.
(o) Ernst & Young, LLP, who
have certified certain financial statements and related schedules
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, and
have audited the Company’s internal control over financial
reporting and management’s assessment thereof, is an
independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations and the Public Company
Accounting Oversight Board (United States) (the “
PCAOB ”). Except as pre-approved in accordance with
the requirements set forth in Section 10A of the Exchange Act,
Ernst & Young, LLP has not been engaged by the Company to
perform any “prohibited activities” (as defined in
Section 10A of the Exchange Act).
(p) The financial statements,
together with the related notes and schedules, included or
incorporated by reference in the General Disclosure Package, the
Prospectus and in the Registration Statement fairly present the
financial position and the results of operations and changes in
financial position of the Company and its consolidated subsidiaries
and other consolidated entities at the respective dates or for the
respective periods therein specified. Such statements and related
notes and schedules have been prepared in accordance with the
generally accepted accounting principles in the United States
(“ GAAP ”) applied on a consistent basis
throughout the periods involved except as may be set forth in the
related notes included or incorporated by reference in the General
Disclosure Package. The financial statements, together with the
related notes and schedules, included or incorporated by reference
in the General Disclosure Package and the Prospectus comply in all
material respects with the Securities Act, the Exchange Act, and
the Rules and Regulations and the rules and regulations under the
Exchange Act. No other financial statements or supporting schedules
or exhibits are required by the Securities Act or the Rules and
Regulations to be described, or included or incorporated by
reference in the Registration Statement, the General Disclosure
Package or the Prospectus. There is no pro forma or as adjusted
financial information which is required to be included in the
Registration Statement, the General Disclosure Package, or and the
Prospectus or a document incorporated by reference therein in
accordance with the Securities Act and the Rules and Regulations
which has not been included or incorporated as so
required.
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(q) Neither the Company nor any of
its subsidiaries has sustained, since the date of the latest
audited financial statements included or incorporated by reference
in the General Disclosure Package, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the General Disclosure
Package; and, since such date, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse changes, or any development
involving a prospective material adverse change, in or affecting
the business, assets, general affairs, management, financial
position, prospects, stockholders’ equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the General
Disclosure Package.
(r) Except as set forth in the
General Disclosure Package, there is no legal or governmental
action, suit, claim or proceeding pending to which the Company or
any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject
which is required to be described in the Registration Statement,
the General Disclosure Package or the Prospectus or a document
incorporated by reference therein and is not described therein, or
which, singularly or in the aggregate, if determined adversely to
the Company or any of its subsidiaries, would reasonably be
expected to have a Material Adverse Effect or prevent the
consummation of the transactions contemplated hereby; and to the
best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(s) Neither the Company nor any of
its subsidiaries is in (i) violation of its charter or by-laws
(or analogous governing instrument, as applicable),
(ii) default in any respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease 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) violation in any respect of any
law, ordinance, governmental rule, regulation or court order,
decree or judgment to which it or its property or assets may be
subject except, in the case of clauses (ii) and (iii) of
this paragraph (s), for any violations or defaults which,
singularly or in the aggregate, would not have a Material Adverse
Effect.
(t) The Company and each of its
subsidiaries possesses all licenses, certificates, authorizations
and permits issued by, and have made all declarations and filings
with, the appropriate local, state, federal or foreign regulatory
agencies or bodies which are necessary or desirable for the
ownership of the properties of the Company and its subsidiaries,
taken as a whole, or the conduct of the business of the Company and
its subsidiaries, taken as a whole, as currently conducted and
described in the General Disclosure Package and the Prospectus, or
which would otherwise be material to the Company and its
subsidiaries taken as a whole (collectively, the “
Governmental Permits ”), except where any failures to
possess or make the same would not, singularly or in the aggregate,
have a Material Adverse Effect. The Company and its
subsidiaries
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are in material compliance with all
such Governmental Permits; all such Governmental Permits are valid
and in full force and effect, except where the validity or failure
to be in full force and effect would not, singularly or in the
aggregate, have a Material Adverse Effect. All such Governmental
Permits are free and clear of any restriction or condition that is
in addition to, or materially different from those normally
applicable to similar licenses, certificates, authorizations and
permits. Neither the Company nor any subsidiary has received
notification of any revocation or modification (or proceedings
related thereto) of any such Governmental Permit and the Company
has no reason to believe that any such Governmental Permit will not
be renewed.
(u) Neither the Company nor any of
its subsidiaries is or, after giving effect to the offering of the
Units and the application of the proceeds thereof as described in
the General Disclosure Package and the Prospectus, will become an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(v) Neither the Company, its
subsidiaries nor, to the Company’s knowledge, any of the
Company’s or its subsidiaries’ officers, directors or
affiliates has taken or will take, directly or indirectly, any
action designed or intended to stabilize or manipulate the price of
any security of the Company, or which caused or resulted in, or
which could in the future reasonably be expected to cause or result
in, stabilization or manipulation of the price of any security of
the Company.
(w) The Company and each of its
subsidiaries owns or possesses the right to use all patents,
trademarks, trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions,
software, databases, know-how, Internet domain names, trade secrets
and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures, and other
intellectual property (collectively, “ Intellectual
Property ”) necessary to carry on their respective
businesses as currently conducted, and as proposed to be conducted
and described in the General Disclosure Package and the Prospectus,
and the Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and its
subsidiaries with respect to the foregoing except for those that
would not reasonably be expected to have a Material Adverse Effect.
The Intellectual Property licenses described in the General
Disclosure Package and the Prospectus are valid, binding upon, and
enforceable by or against the parties thereto in accordance with
their terms. The Company and each of its subsidiaries has complied
in all material respects with, and is not in breach nor has
received any asserted or threatened claim of breach of, any
Intellectual Property license, and the Company has no knowledge of
any breach or anticipated breach by any other person to any
Intellectual Property license. The Company’s and each of its
subsidiaries’ businesses as now conducted and as proposed to
be conducted do not and will not infringe or conflict with any
patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses or other Intellectual Property or franchise right
of any person. Except as described in the General Disclosure
Package, no claim has been made against the Company or any of its
subsidiaries alleging the infringement by the Company or any of its
subsidiaries of any patent, trademark, service mark, trade name,
copyright, trade secret, license in or other intellectual property
right or
10
franchise right of any person. The
Company and each of its subsidiaries has taken all reasonable steps
to protect, maintain and safeguard its rights in all Intellectual
Property, including the execution of appropriate nondisclosure and
confidentiality agreements. The consummation of the transactions
contemplated by this Agreement will not result in the loss or
impairment of or payment of any additional amounts with respect to,
nor require the consent of any other person in respect of, the
Company’s or any of its subsidiaries’ right to own,
use, or hold for use any of the Intellectual Property as owned,
used or held for use in the conduct of the businesses as currently
conducted. The Company and each of its subsidiaries has at all
times complied in all material respects with all applicable laws
relating to privacy, data protection, and the collection and use of
personal information collected, used, or held for use by the
Company and any of its subsidiaries in the conduct of the
Company’s and its subsidiaries businesses. No claims have
been asserted or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries alleging a violation
of any person’s privacy or personal information or data
rights and the consummation of the transactions contemplated hereby
will not breach or otherwise cause any violation of any law related
to privacy, data protection, or the collection and use of personal
information collected, used, or held for use by the Company or any
of its subsidiaries in the conduct of the Company’s or any of
its subsidiaries’ businesses. The Company and each of its
subsidiaries takes reasonable measures to ensure that such
information is protected against unauthorized access, use,
modification, or other misuse.
(x) The Company and each of its
subsidiaries have good and marketable title in fee simple to, or
have valid rights to lease or otherwise use, all items of real or
personal property which are material to the business of the Company
and its subsidiaries taken as a whole, in each case free and clear
of all liens, encumbrances, security interests, claims and defects
that do not, singularly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the General Disclosure Package and
the Prospectus, are in full force and effect, and neither the
Company nor any subsidiary has received any notice of any material
claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights
of the Company or such subsidiary to the continued possession of
the leased or subleased premises under any such lease or
sublease.
(y) No labor disturbance by the
employees of the Company or any of its subsidiaries exists or, to
the best of the Company’s knowledge, is 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, manufacturers, customers or contractors, that would
reasonably be expected, singularly or in the aggregate, to have a
Material Adverse Effect. The Company is not aware that any key
employee or significant group of employees of the Company or any
subsidiary plans to terminate employment with the Company or any
such subsidiary.
11
(z) No “prohibited
transaction” (as defined in 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
”)) or “accumulated funding deficiency” (as
defined in Section 302 of ERISA) or any of the events set
forth in Section 4043(b) of ERISA (other than events with
respect to which the thirty (30)-day notice requirement under
Section 4043 of ERISA has been waived) has occurred or could
reasonably be expected to occur with respect to any employee
benefit plan of the Company or any of its subsidiaries which could,
singularly or in the aggregate, have a Material Adverse Effect.
Each employee benefit plan of the Company or any of its
subsidiaries is in compliance in all material respects with
applicable law, including ERISA and the Code. The Company and its
subsidiaries have not incurred and could not reasonably be expected
to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any pension plan (as defined in
ERISA). Each pension plan for which the Company or any of its
subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified,
and nothing has occurred, whether by action or by failure to act,
which could, singularly or in the aggregate, cause the loss of such
qualification.
(aa) The Company and its
subsidiaries are in compliance with all foreign, federal, state and
local rules, laws and regulations relating to the use, treatment,
storage and disposal of hazardous or toxic substances or waste and
protection of health and safety or the environment which are
applicable to their businesses (“ Environmental Laws
”), except where the failure to comply would not, singularly
or in the aggregate, have a Material Adverse Effect. There has been
no storage, generation, transportation, handling, treatment,
disposal, discharge, emission, or other release of any kind of
toxic or other wastes or other hazardous substances by, due to, or
caused by the Company or any of its subsidiaries (or, to the
Company’s knowledge, any other entity for whose acts or
omissions the Company or any of its subsidiaries is or may
otherwise be liable) upon any of the property now or previously
owned or leased by the Company or any of its subsidiaries, or upon
any other property, in violation of any law, statute, ordinance,
rule, regulation, order, judgment, decree or permit or which would,
under any law, statute, ordinance, rule (including rule of common
law), regulation, order, judgment, decree or permit, give rise to
any liability, except for any violation or liability which would
not, singularly or in the aggregate with all such violations and
liabilities, have a Material Adverse Effect; and there has been no
disposal, discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of
any toxic or other wastes or other hazardous substances with
respect to which the Company has knowledge, except for any such
disposal, discharge, emission, or other release of any kind which
would not, singularly or in the aggregate with all such discharges
and other releases, have a Material Adverse Effect. In the ordinary
course of business, the Company and its subsidiaries conduct
periodic reviews of the effect of Environmental Laws on their
businesses and assets, in the course of which they identify and
evaluate 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 Governmental Permits issued thereunder, any related
constraints on operating activities and any potential liabilities
to third parties). On the basis of such
12
reviews, the Company and its
subsidiaries have reasonably concluded that such associated costs
and liabilities would not have, singularly or in the aggregate, a
Material Adverse Effect.
(bb) The Company and its
subsidiaries, each (i) has timely filed all necessary federal,
state, local and foreign tax returns, and all such returns were
true, complete and correct, (ii) has paid all federal, state,
local and foreign taxes, assessments, governmental or other charges
that are due and payable for which it is liable, including, without
limitation, all sales and use taxes and all taxes which the Company
or any of its subsidiaries is obligated to withhold from amounts
owing to employees, creditors and third parties, and
(iii) does not have any tax deficiency or claims outstanding
or assessed or, to the best of its knowledge, proposed against any
of them, except those, in each of the cases described in clauses
(i), (ii) and (iii) of this paragraph (bb) , that
would not, singularly or in the aggregate, have a Material Adverse
Effect. The Company and its subsidiaries, each has not engaged in
any transaction which is a corporate tax shelter or which would
reasonably be expected to be characterized as such by the Internal
Revenue Service or any other taxing authority. The accruals and
reserves on the books and records of the Company and its
subsidiaries in respect of tax liabilities for any taxable period
not yet finally determined are adequate to meet any assessments and
related liabilities for any such period, and since
December 31, 2008 the Company and its subsidiaries each has
not incurred any liability for taxes other than in the ordinary
course.
(cc) The Company and each of its
subsidiaries carries, or is covered by, insurance provided by
recognized, financially sound and reputable institutions with
policies in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in
similar businesses in similar industries. The Company has no reason
to believe that it or any subsidiary will not be able (i) to
renew its existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that would not result in a
Material Adverse Effect. Neither the Company nor any of its
subsidiaries has been denied any insurance coverage that they have
sought or for which they have applied.
(dd) The Company and its
subsidiaries each maintains a system of 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 GAAP 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 accountability
for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
Except as described in the General Disclosure Package, since the
end of the Company’s most recent audited fiscal year, there
has been (A) no material weakness in the Company’s
internal control over financial reporting (whether or not
remediated) and (B) 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.
13
(ee) The minute books of the Company
and each of its subsidiaries that would be a “significant
subsidiary” within the meaning of Rule 1-02(w) of Regulation
S-X under the Exchange Act (such a significant subsidiary of the
Company, a “ Significant Subsidiary ”) have been
made available to the Underwriter and counsel for the Underwriter,
and such books (i) contain a complete summary of all meetings
and actions of the board of directors (including each board
committee) and stockholders of the Company (or analogous governing
bodies and interest holders, as applicable), and each of its
Significant Subsidiaries since the time of its respective
incorporation or organization through the date of the latest
meeting and action, and (ii) accurately in all material
respects reflect all transactions referred to in such
minutes.
(ff) There is no franchise, lease,
contract, agreement or document required by the Securities Act or
by the Rules and Regulations to be described in the General
Disclosure Package and in the Prospectus or a document incorporated
by reference therein or to be filed as an exhibit to the
Registration Statement or a document incorporated by reference
therein which is not described or filed therein as required; and
all descriptions of any such franchises, leases, contracts,
agreements or documents contained in the Registration Statement or
in a document incorporated by reference therein are accurate and
complete descriptions of such documents in all material respects.
Other than as described in the General Disclosure Package, no such
franchise, lease, contract or agreement has been suspended or
terminated for convenience or default by the Company or any of its
subsidiaries or any of the other parties thereto, and neither the
Company nor any of its subsidiaries has received notice nor does
the Company have any other knowledge of any such pending or
threatened suspension or termination, except for such pending or
threatened suspensions or terminations that would not reasonably be
expected to, singularly or in the aggregate, have a Material
Adverse Effect.
(gg) No relationship, direct or
indirect, exists between or among the Company and any of its
subsidiaries on the one hand, and the directors, officers,
stockholders (or analogous interest holders), customers or
suppliers of the Company or any of its subsidiaries or any of their
affiliates on the other hand, which is required to be described in
the General Disclosure Package and the Prospectus or a document
incorporated by reference therein and which is not so
described.
(hh) No person or entity has the
right to require registration of shares of Common Stock or other
securities of the Company or any of its subsidiaries because of the
filing or effectiveness of the Registration Statement or otherwise,
except for persons and entities who have expressly waived such
right in writing or who have been given timely and proper written
notice and have failed to exercise such right within the time or
times required under the terms and conditions of such right. Except
as described in the General Disclosure Package, there are no
persons with registration rights or similar rights to have any
securities registered or to include such securities with the shares
of Common Stock registered by the Company or any of its
subsidiaries under the Securities Act.
14
(ii) Neither the Company nor any of
its subsidiaries owns any “margin securities” as that
term is defined in Regulation U of the Board of Governors of the
Federal Reserve System (the “ Federal Reserve Board
”), and none of the proceeds of the sale of the Units will be
used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase
or carry any margin security or for any other purpose which might
cause any of the Units to be considered a “purpose
credit” within the meanings of Regulation T, U or X of the
Federal Reserve Board.
(jj) Neither the Company nor any of
its subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement) that
would give rise to a valid claim against the Company or the
Underwriter for a brokerage commission, finder’s fee or like
payment in connection with the offering and sale of the Units or
any transaction contemplated by this Agreement, the Registration
Statement, the General Disclosure Package or the
Prospectus.
(kk) No forward-looking statement
(within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in either the
General Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(ll) The Company is subject to and
in compliance in all material respects with the reporting
requirements of Section 13 or Section 15(d) of the
Exchange Act. The Common Stock is registered pursuant to
Section 12(b) of the Exchange Act and is listed on the NASDAQ
GM and the Company has taken no action designed to, or reasonably
likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act or delisting the Common Stock
from the NASDAQ GM, nor has the Company received any notification
that the Commission, FINRA or the NASDAQ Stock Market LLC is
currently contemplating terminating such registration or listing.
No consent, approval, authorization or order of, or filing,
notification or registration with, the NASDAQ GM is required for
the listing and trading of the shares of Common Stock on the NASDAQ
GM, except for (i) a Notification: Listing of Additional
Shares; and (ii) a Notification: Change in the Number of
Shares Outstanding.
(mm) The Company is in compliance in
all material respects with all applicable provisions of the
Sarbanes-Oxley Act of 2002 and all applicable rules and regulations
promulgated thereunder or implementing the provisions thereof (the
“ Sarbanes-Oxley Act ”).
(nn) The Company is in compliance in
all material respects with all applicable corporate governance
requirements set forth in the NASDAQ Marketplace Rules that are
then in effect.
(oo) The statistical and market
related data included in the Registration Statement, the General
Disclosure Package and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and
such data agree with the sources from which they are
derived.
15
(pp) Neither the Company nor any
subsidiary nor any of their affiliates (within the meaning of
FINRA’s NASD Conduct Rule 2720(f)(1)) directly or indirectly
controls, is controlled by, or is under common control with, or is
an associated person (within the meaning of Article I,
Section 1(ee) of the By-laws of FINRA) of, any member firm of
FINRA.
(qq) No approval of the stockholders
of the Company under the rules and regulations of NASDAQ (including
Rule 5635 of the NASDAQ Marketplace Rules) is required for the
Company to issue and deliver to the Underwriter the
Units.
(rr) Any certificate signed by or on
behalf of the Company and delivered to the Underwriter or to
counsel for the Underwriter shall be deemed to be a representation
and warranty by the Company to the Underwriter as to the matters
covered thereby.
4. T HE C LOSING . The time and date of closing and delivery of
the documents required to be delivered to the Underwriter pursuant
to Sections 5 and 7 hereof shall be at 10:00 A.M.,
New York time, on October 9, 2009 (the “ Closing
Date ”) at the office of Cooley Godward Kronish LLP, The
Prudential Building, 800 Boylston Street, Boston, MA
02199.
5. F URTHER A GREEMENTS OF THE C OMPANY . The Company agrees with the
Underwriter:
(a) Subject to the Rules and
Regulations, to prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Underwriter and file such Rule
462(b) Registration Statement with the Commission on the date
hereof; to prepare the Prospectus in a form approved by the
Underwriter containing information previously omitted at the time
of effectiveness of the Registration Statement in reliance on Rules
430A, 430B and 430C of the Rules and Regulations and to file such
Prospectus pursuant to Rule 424(b) of the Rules and Regulations not
later than the second (2 nd ) business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A of the Rules and Regulations; to
notify the Underwriter promptly of the Company’s intention to
file or prepare any supplement or amendment to any Registration
Statement or to the Prospectus in connection with this Offering and
to provide a draft of any such amendment or supplement to the
Registration Statement, the General Disclosure Package or to the
Prospectus to which the Underwriter shall reasonably object by
notice to the Company after a reasonable period to review; to
advise the Underwriter, promptly after it receives notice thereof,
of the time when any amendment to any Registration Statement has
been filed in connection with the Offering or becomes effective or
any supplement to the General Disclosure Package or the Prospectus
or any amended Prospectus has been filed and to furnish the
Underwriter copies thereof; to file within the time periods
prescribed by the Exchanged Act, including any extension thereof,
all material required to be filed by the Company with the
Commission pursuant to Rule 433(d) or Rule 163(b)(2) of the Rules
and Regulations, as the case may be; to file within the time
periods prescribed by the Exchange Act, including any extension
thereof all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the
16
Prospectus and for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) of the Rules and Regulations) is required in
connection with the offering or sale of the Units; to advise the
Underwriter, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, of the suspension
of the qualification of the Units for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement, the
General Disclosure Package or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus or
suspending any such qualification, and promptly to use its best
efforts to obtain the withdrawal of such order.
(b) The Company represents and
agrees that, it has not made, and unless it obtains the prior
consent of the Underwriter, it will not, make any offer relating to
the Units that would constitute a “free writing
prospectus” as defined in Rule 405 of the Rules and
Regulations (each, a “ Permitted Free Writing
Prospectus ”); provided that the prior written
consent of the Underwriter hereto shall be deemed to have been
given in respect of the Issuer Free Writing Prospectus(es) included
in Schedule A hereto. The Company represents that it has
treated and agrees that it will treat each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, comply with the
requirements of Rules 164 and 433 of the Rules and Regulations
applicable to any Issuer Free Writing Prospectus, including the
requirements relating to timely filing with the Commission,
legending and record keeping and will not take any action that
would result in the Underwriter or the Company being required to
file with the Commission pursuant to Rule 433(d) of the Rules and
Regulations a free writing prospectus prepared by or on behalf of
the Underwriter that the Underwriter otherwise would not have been
required to file thereunder.
(c) If at any time when a Prospectus
relating to the Units is required to be delivered under the
Securities Act, any event occurs or condition exists as a result of
which the Prospectus, as then amended or supplemented, would
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading, or the Registration Statement, as then amended or
supplemented, would include any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein not misleading, or if for any other reason it is necessary
at any time to amend or supplement any Registration Statement or
the Prospectus to comply with the Securities Act or the Exchange
Act, the Company will promptly notify the Underwriter, and upon the
Underwriter’s request, the Company will promptly prepare and
file with the Commission, at the Company’s expense, an
amendment to the Registration Statement or an amendment or
supplement to the Prospectus that corrects such statement or
omission or effects such compliance and will deliver to the
Underwriter, without charge, such number of copies thereof as the
Underwriter may reasonably request. The Company consents to the use
of the Prospectus or any amendment or supplement thereto by the
Underwriter.
17
(d) If the General Disclosure
Package is being used to solicit offers to buy the Units at a time
when the Prospectus is not yet available to prospective purchasers
and any event shall occur as a result of which, in the judgment of
the Company or in the reasonable opinion of the Underwriter, it
becomes necessary to amend or supplement the General Disclosure
Package in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or to
make the statements therein not conflict with the information
contained or incorporated by reference in the Registration
Statement then on file and not superseded or modified, or if it is
necessary at any time to amend or supplement the General Disclosure
Package to comply with any law, the Company promptly will either
(i) prepare, file with the Commission (if required) and
furnish to the Underwriter and any dealers an appropriate amendment
or supplement to the General Disclosure Package or
(ii) prepare and file with the Commission an appropriate
filing under the Exchange Act which shall be incorporated by
reference in the General Disclosure Package so that the General
Disclosure Package as so amended or supplemented will not, in the
light of the circumstances under which they were made, be
misleading or conflict with the Registration Statement then on
file, or so that the General Disclosure Package will comply with
law.
(e) If at any time following
issuance of an Issuer Free Writing Prospectus in connection with
the Offering there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or
will conflict with the information contained in the Registration
Statement, Pricing Prospectus or Prospectus, including any document
incorporated by reference therein and any prospectus supplement
deemed to be a part thereof and not superseded or modified or
included or would include an untrue statement of a material fact or
omitted or would omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, the Company has promptly notified or will
promptly notify the Underwriter (and the Underwriter agrees to
cease any such use promptly after such notification) so that any
use of the Issuer Free Writing Prospectus may cease until it is
amended or supplemented and has promptly amended or will promptly
amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement
or omission. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus in reliance
upon, and in conformity with, written information furnished to the
Company by the Underwriter specifically for inclusion therein,
which information the parties hereto agree is limited to the
Underwriter’s Information (as defined in
Section 17 ).
(f) To the extent not available on
the Commission’s EDGAR system or any successor system, to
furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as
originally filed with the Commission, and of each amendment thereto
filed with the Commission, including all consents and exhibits
filed therewith.
(g) To the extent not available on
the Commission’s EDGAR system or any successor system, to
deliver promptly to the Underwriter in New York City such number of
the following documents as the Underwriter shall reasonably
request: (i) conformed
18
copies of the Registration Statement
as originally filed with the Commission (in each case excluding
exhibits), (ii) each Preliminary Prospectus (if any),
(iii) any Issuer Free Writing Prospectus, (iv) the
Prospectus (the delivery of the documents referred to in clauses
(i), (ii), (iii) and (iv) of this paragraph (g)
to be made not later than 10:00 A.M., New York time, on the
business day following the execution and delivery of this
Agreement), (v) conformed copies of any amendment to the
Registration Statement (excluding exhibits), (vi) any
amendment or supplement to the General Disclosure Package or the
Prospectus (the delivery of the documents referred to in clauses
(v) and (vi) of this paragraph (g) to be
made not later than 10:00 A.M., New York City time, on the business
day following the date of such amendment or supplement) and
(vii) any document incorporated by reference in the General
Disclosure Package or the Prospectus (excluding exhibits thereto)
(the delivery of the documents referred to in clause (vi) of
this paragraph (g) to be made not later than 10:00
A.M., New York City time, on the business day following the date of
such document).
(h) To make generally available to
its stockholders as soon as practicable, but in any event not later
than eighteen (18) months after the effective date of each
Registration Statement (as defined in Rule 158(c) of the Rules and
Regulations), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158);
and to furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders’ equity and cash flows
of the Company and its consolidated subsidiaries certified by
independent public accountants) and after each of the first three
fiscal quarters of each fiscal year (beginning with the first
fiscal quarter after the effective date of such Registration
Statement), consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable
detail.
(i) To take promptly from time to
time such actions as the Underwriter may reasonably request to
qualify the Units for offering and sale under the securities or
blue sky laws of such jurisdictions (domestic or foreign) as the
Underwriter may designate and to continue such qualifications in
effect, and to comply with such laws, for so long as required to
permit the offer and sale of Units in such jurisdictions;
provided that the Company and its subsidiaries shall not be
obligated to qualify as foreign corporations in any jurisdiction in
which they are not so qualified or to file a general consent to
service of process in any jurisdiction.
(j) During the period of five
(5) years from the date hereof, to the extent not available on
the Commission’s EDGAR system or any successor system, to
deliver to the Underwriter, (i) upon request, copies of all
reports or other communications furnished generally to
stockholders, and (ii) upon request, copies of any reports and
financial statements furnished or filed with the Commission or any
national securities exchange or aut
