UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
|
May
28, 2009
|
||
|
Date
of Report (Date of Earliest Event
Reported)
|
||
|
ITRON,
INC.
|
||
|
(Exact
Name of Registrant as Specified in its Charter)
|
|
Washington
|
000-22418
|
91-1011792
|
||
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File No.)
|
(IRS
Employer
Identification
No.)
|
|
2111
N. Molter Road, Liberty Lake, WA 99019
|
|
(Address
of Principal Executive Offices, Zip
Code)
|
|
(509)
924-9900
|
|
(Registrant’s
Telephone Number, Including Area
Code)
|
|
(Former
Name or Former Address, if Changed Since Last
Report)
|
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
|
|
[ ]
Written communications pursuant to Rule 425 under Securities Act (17 CFR
230.425)
|
|
|
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
|
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|
|
|
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
|
Item
8.01 Other Events.
On May
28, 2009, Itron, Inc. (the Company) entered into an Underwriting Agreement (the
Underwriting Agreement) with Canaccord Adams Inc., Canaccord Capital
Corporation, and Stephens Inc. (the Underwriters). The Underwriting
Agreement provides for the sale of an aggregate of 2,750,000 shares of the
Company's common stock at a public offering price of $53.00 per share, including
an over-allotment option of 412,500 shares. The transaction contemplated by the
Underwriting Agreement is expected to close on or about June 3,
2009. The common stock is being offered and sold pursuant to the
Company's shelf registration statement on Form S-3 (File No. 333-158417) (the
Registration Statement), as supplemented by a prospectus supplement dated
May 28, 2009.
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits.
|
Exhibit
Number
|
Description
|
|
|
1.1
|
Underwriting
Agreement among Canaccord Adams Inc., Canaccord Capital Corporation,
Stephens Inc., and Itron, Inc.
|
|
|
99.1
|
Information
relating to Item 14 – Other Expenses of Issuance and Distribution of the
Registration Statement
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned, hereunto
duly authorized.
ITRON, INC.
Dated: May
28,
2009 By: /s/ Steven M.
Helmbrecht
Steven M. Helmbrecht
Sr. Vice President and Chief Financial Officer
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
|
|
||
|
|
Exhibit
99.1
Information
Relating to Item 14 – Other Expenses of Issuance and Distribution
The
expenses to be paid by Itron, Inc. (the Company) in connection with the issuance
and distribution of the Company's common stock being offered pursuant to the
shelf registration statement, File No. 333-158417 (the Registration Statement),
and a prospectus supplement dated May 28, 2009 (the Prospectus Supplement),
other than underwriting discounts and commissions, are set forth in the
following table. All amounts are estimated except the Securities and
Exchange Commission registration fee, which assumes the exercise of the
over-allotment option of 412,500 shares.
|
Securities
and Exchange Commission registration fee
|
$ 8,963
|
|
|
Listing
fees
|
31,625
|
|
|
Blue
sky fees and expenses
|
5,000
|
|
|
Printing
and engraving expenses
|
25,000
|
|
|
Transfer
agent and registrar fees and expenses
|
5,000
|
|
|
Legal
fees and expenses
|
100,000
|
|
|
Accounting
fees and expenses
|
124,412
|
|
|
Total
|
$300,000
|
Exhibit
1.1
Itron,
Inc.
2,750,000
Shares
Common
Stock
(no par
value)
Underwriting
Agreement
Underwriting
Agreement
May 28,
2009
Canaccord
Adams Inc.
Canaccord
Capital Corporation
Stephens
Inc.
c/o
Cannacord Adams Inc.
99
High Street, 12th
Floor
Boston,
MA 02110
Ladies
and Gentlemen:
Itron,
Inc., a Washington corporation (the “Company”), proposes
to issue and sell to Canaccord Adams Inc., Canaccord Capital
Corporation and Stephens Inc. (collectively, the “Underwriters”) pursuant to this
Underwriting Agreement (this “Agreement”) an
aggregate of 2,750,000 shares (the “Firm Shares”) of common
stock, no par value (the “Common Stock”), of
the Company. In addition, solely for the purpose of covering
over-allotments, the Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional 412,500 shares of Common Stock
(the “Additional Shares”). The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “Shares.” The
Shares are described in the Prospectus which is referred to
below. The Shares will have attached thereto share purchase rights
(the “Rights”)
issued pursuant to the Rights Agreement (the “Rights Agreement”)
dated as of December 11, 2002 between the Company and Mellon Investor
Services LLC, as rights agent.
The
Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Act”), with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-158417) under the Act (the
“registration statement”), including
a prospectus, which registration statement incorporates by reference documents
which the Company has filed, or will file, in accordance with the provisions of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “Exchange
Act”). Such registration statement has become effective under
the Act.
Except
where the context otherwise requires, “Registration
Statement,” as used herein, means the registration statement, as amended
at the time of such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the respective Underwriters
(the “Effective
Time”), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein
and (ii) any information contained or incorporated by reference in a
prospectus filed with the Commission pursuant to Rule 424(b) under the Act,
to the extent such information is deemed, pursuant to Rule 430B or
Rule 430C under the Act, to be part of the registration statement at the
Effective Time.
Except
where the context otherwise requires, “Basic
Prospectus,” as used herein, means the base prospectus included as
part of the Registration Statement, in the form in which it has most recently
been filed with the Commission prior to the date of this Agreement. Except
where the context otherwise requires, “Prospectus Supplement,” as used
herein, means the final prospectus supplement, relating to the Shares, filed by
the Company with the Commission pursuant to Rule 424(b) under the Act on or
before the second business day after the date hereof (or such earlier time as
may be required under the Act), in the form furnished by the Company to the
Underwriters for use by the Underwriters and by dealers in connection with
the offering of the Shares. Except where the context otherwise requires,
“Prospectus,”
as used herein, means the Basic Prospectus as supplemented by the Prospectus
Supplement.
“Permitted Free Writing
Prospectuses,” as used herein, means the documents listed on Schedule B attached
hereto. The Underwriters have not offered or sold and will not offer or
sell, without the Company’s consent, any Shares by means of any “free
writing prospectus” (as defined in Rule 405 under the Act) that is required
to be filed by the Underwriters with the Commission pursuant to Rule 433
under the Act, other than a Permitted Free Writing Prospectus.
“Disclosure Package,”
as used herein, means the Basic Prospectus, together with the Permitted Free
Writing Prospectuses, if any, and the information set forth on Schedule C attached
hereto, taken as a whole.
Any
reference herein to the Registration Statement, the Basic Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus
shall be deemed to refer to and include the documents, if any, incorporated by
reference, or deemed to be incorporated by reference, therein (each an “Incorporated
Document” and collectively, the “Incorporated
Documents”), including, unless the context otherwise requires, the
documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be
deemed to refer to and include the filing of any document under
the Exchange Act on or after the initial effective date of the
Registration Statement, or the date of the Basic Prospectus, the
Prospectus Supplement, the Prospectus or such Permitted Free Writing
Prospectus, as the case may be, and deemed to be incorporated therein by
reference.
As used
in this Agreement, “business day” shall
mean a day on which the NASDAQ Stock Market (“NASDAQ”) is open for
trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or
other subdivision of this Agreement. The term “or,” as used herein,
is not exclusive.
The
Company and the Underwriters agree as follows:
1. Sale and
Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A hereto,
subject to adjustment in accordance herewith, in each case at a purchase price
of $50.79 per Share. The Company is advised by the Underwriters that
the Underwriters intend (i) to make a public offering of their respective
portions of the Firm Shares as soon after the effectiveness of this Agreement as
in the Underwriters’ judgment is advisable and (ii) initially to offer the
Firm Shares upon the terms set forth in the Prospectus. The
Underwriters may from time to time increase or decrease the public offering
price after the initial public offering to such extent as the Underwriters may
determine.
In
addition, the Company hereby grants to the several Underwriters the option
to purchase, and upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the
Company, ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company for the Firm Shares. This option may be exercised by
the Underwriters at any time and from time to time on or before the thirtieth
day following the date hereof, by written notice to the Company. Such
notice shall set forth the aggregate number of Additional Shares as to which the
option is being exercised, and the date and time when the Additional Shares are
to be delivered (such date and time being herein referred to as the “Additional Time of
Purchase”); provided,
however, that the Additional Time of Purchase shall not be earlier than the Time
of Purchase (as defined below) nor earlier than the second business day after
the date on which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been
exercised.
2. Payment and
Delivery. Payment of the purchase price for the Firm Shares
shall be made to the Company by Federal Funds wire transfer against delivery of
the certificates for the Firm Shares to the Underwriters through the facilities
of The Depository Trust Company (“DTC”) for the
respective accounts of the Underwriters. Such payment and delivery
shall be made at 10:00 A.M., New York City time, on June 3, 2009 (the “Closing Date”)
(unless another time shall be agreed to by the Underwriters and the
Company). The time at which such payment and delivery are to be made
is hereinafter sometimes called the “Time of
Purchase.” Electronic transfer of the Firm Shares shall be
made to the Underwriters at the time of purchase in such names and in such
denominations as the Underwriters shall specify.
Payment
of the purchase price for the Additional Shares shall be made at the Additional
Time of Purchase in the same manner and at the same office as the payment for
the Firm Shares. Electronic transfer of the Firm Shares shall be made to
the Underwriters at the time of purchase in such names and in such denominations
as the Underwriters shall specify. The Time of Purchase and the
Additional Time of Purchase are sometimes referred to herein as the Closing
Dates.
Deliveries
of the documents described in Section 6 hereof with respect to the purchase
of the Shares shall be made at the offices of Skadden, Arps, Slate, Meagher
& Flom LLP at 300 South Grand Avenue, Suite 3400, Los Angeles, California
90071, at 9:00 A.M., New York City time, on the date of the closing of the
purchase of the Shares.
3. Representations and
Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the
Registration Statement has heretofore become effective under the Act; no stop
order of the Commission preventing or suspending the use of the Basic
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus, or the effectiveness of the Registration Statement, has been
issued, and no proceedings for such purpose have been instituted or, to the
Company’s knowledge, are contemplated by the Commission;
- 2
- -
(b) the
Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase and at all
times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; the conditions to the use of
Form S-3 in connection with the offering and sale of the Shares as
contemplated hereby have been satisfied; the Registration Statement constitutes
an “automatic shelf registration statement” (as defined in Rule 405 under
the Act); the Company has not received from the Commission a notice, pursuant to
Rule 401(g)(2), of objection to the use of the automatic shelf registration
statement form; as of the determination date applicable to the Registration
Statement (and any amendment thereof) and the offering contemplated hereby, the
Company is a “well-known seasoned issuer” as defined in Rule 405 under the
Act; the Registration Statement meets, and the offering and sale of the Shares
as contemplated hereby complies with, the requirements of Rule 415 under
the Act (including, without limitation, Rule 415(a)(5) under the Act); the
Registration Statement did not, as of the Effective Time, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; the
Basic Prospectus complied as of its date and the date it was filed with the
Commission, complies as of the date hereof and, at the time of purchase and at
all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or
any similar rule) in connection with any sale of Shares, will comply, in all
material respects, with the requirements of the Act; the Disclosure Package does
not include an 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; each of the Prospectus
Supplement and the Prospectus will comply, as of the date that it is filed with
the Commission, the date of the Prospectus Supplement, the time of purchase and
at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or
any similar rule) in connection with any sale of Shares, in all material
respects, with the requirements of the Act (in the case of the Prospectus,
including, without limitation, Section 10(a) of the Act); at no time during the
period that begins on the earlier of the date of the Prospectus Supplement and
the date the Prospectus Supplement is filed with the Commission and ends at the
later of the time of purchase and the end of the period during which a
prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection
with any sale of Shares did or will any Prospectus Supplement or the Prospectus,
as then amended or supplemented, include an 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; each Permitted Free Writing Prospectus does not conflict with the
information contained in the Registration Statement, the Disclosure Package or
the Prospectus, and at no time during the period that begins on the date of such
Permitted Free Writing Prospectus and ends at the time of purchase did or will
any Permitted Free Writing Prospectus include an 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 representation or warranty in this Section 3(b) with respect to
any statement contained in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus in reliance upon and in conformity with
information concerning the Underwriter and furnished in writing by or on behalf
of such Underwriter to the Company expressly for use in the Registration
Statement, the Prospectus or such Permitted Free Writing Prospectus; each
Incorporated Document, at the time such document was filed with the Commission
or at the time such document became effective, as applicable, complied, in all
material respects, with the requirements of the Exchange Act and did not include
an 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;
(c) prior to
the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection
with the offer or sale of the Shares, in each case other than the Basic
Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has
not, directly or indirectly, prepared, used or referred to any Permitted Free
Writing Prospectus except in compliance with Rule 163 or with Rules 164 and
433 under the Act; assuming that such Permitted Free Writing Prospectus is so
sent or given after the Registration Statement was filed with the Commission
(and after such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), the sending or
giving, by any Underwriter, of any Permitted Free Writing Prospectus will
satisfy the provisions of Rule 164 and Rule 433 (without reliance on
subsections (b), (c) and (d) of Rule 164); the conditions set forth in one
or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1)
under the Act are satisfied, and the registration statement relating to the
offering of the Shares contemplated hereby, as initially filed with the
Commission, includes a prospectus that, other than by reason of Rule 433 or
Rule 431 under the Act, satisfies the requirements of Section 10 of the
Act; neither the Company nor the Underwriters are disqualified, by reason of
subsection (f) or (g) of Rule 164 under the Act, from using, in connection
with the offer and sale of the Shares, “free writing prospectuses” (as defined
in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the
Company is not an “ineligible issuer” (as defined in Rule 405 under the
Act) as of the eligibility determination date for purposes of Rules 164 and 433
under the Act with respect to the offering of the Shares contemplated by the
Registration Statement;
(d) as of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth under the heading “Actual” in the section of the
Prospectus entitled “Capitalization” (and any similar sections or information,
if any, contained in any Permitted Free Writing Prospectus), and, as of the time
of purchase, the Company shall have an authorized and outstanding capitalization
as set forth in the section of the Prospectus entitled “Capitalization” (and any
similar sections or information, if any, contained in any Permitted Free Writing
Prospectus) (subject, in each case, to the issuance of shares of Common Stock
upon exercise of stock options and warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto) and the Prospectus and
the grant of options under existing stock option plans described in the
Registration Statement (excluding the exhibits thereto) and the Prospectus); all
of the issued and outstanding shares of capital stock, including the Shares, of
the Company have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable securities
laws and were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right; the Shares are duly listed, and
admitted and authorized for trading, subject to official notice of issuance, on
NASDAQ;
- 3
- -
(e) the
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Washington, with full corporate
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as contemplated
herein;
(f) the
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, (i) have a material adverse effect on the business,
properties, financial condition, results of operations or prospects of the
Company and the Subsidiaries (as defined below) taken as a whole,
(ii) prevent or materially interfere with consummation of the transactions
contemplated hereby or (iii) result in the delisting of shares of Common
Stock from NASDAQ (the occurrence of any such effect or any such prevention or
interference or any such result described in the foregoing clauses (i),
(ii) and (iii) being herein referred to as a “Material Adverse
Effect”);
(g) the
Company has no subsidiaries (as defined under the Act) other than those listed
on Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year
ended December 31, 2008 (collectively, the “Subsidiaries”);
except as disclosed in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, the Company owns, directly or
indirectly, all of the issued and outstanding capital stock of each of the
Subsidiaries; other than the capital stock of the Subsidiaries and the Company’s
ownership in PT Mecoindo (the “Joint Venture”), the
Company does not own, directly or indirectly, any shares of stock or any other
equity interests or long-term debt securities of any corporation, firm,
partnership, joint venture, association or other entity; complete and correct
copies of the charters and the bylaws of the Company and Itron Luxembourg and
all amendments thereto have been delivered to the Underwriters, and no changes
therein will be made on or after the date hereof through and including the time
of purchase; each Subsidiary has been incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any;
each Subsidiary is qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would not,
individually or in the aggregate, have a Material Adverse Effect; except as
disclosed in the Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any, with respect to the Joint Venture, all of the
outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable, have been
issued in compliance with all applicable securities laws, were not issued in
violation of any preemptive right, resale right, right of first refusal or
similar right and are owned by the Company subject to no security interest,
other encumbrance or adverse claims; except as disclosed in the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any,
with respect to the Joint Venture, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert
any obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding; the Company has no “significant subsidiary,” as
that term is defined in Rule 1-02(w) of Regulation S-X under the Act, other
than Itron Luxembourg;
(h) the
Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar rights; the Shares,
when issued and delivered against payment therefor as provided herein, will be
free of any restriction upon the voting or transfer thereof pursuant to the
Washington Corporation Law or the Company’s charter or bylaws or any agreement
or other instrument to which the Company is a party;
(i) the
capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof, if any, contained or incorporated by
reference in the Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any; and the certificates for the Shares are in due and
proper form;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) the
Rights Agreement has been duly authorized, executed and delivered by the
Company; the Rights have been duly authorized by the Company and validly
issued;
(l) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which, with notice, lapse of time or
both, would result in any breach or violation of, constitute a default under or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (A) its charter or bylaws, or (B) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound or affected, or (C) any federal, state, local or foreign law,
regulation or rule, or (D) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without
limitation, the rules and regulations of NASDAQ), or (E) any decree,
judgment or order applicable to it or any of its properties; except, in the
cases of clause (B), (C) and (D), where such occurrence would not,
individually or in the aggregate, have a Material Adverse Effect;
- 4
- -
(m) the
execution, delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which, with notice, lapse of time or both, would
result in any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any Subsidiary
pursuant to) (A) the charter or bylaws of the Company or any of the
Subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or affected, or (C) any federal, state, local or
foreign law, regulation or rule, or (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of NASDAQ, or
(E) any decree, judgment or order applicable to the Company or any of the
Subsidiaries or any of their respective properties; except, in the cases of
clause (B), (C) and (D), where such occurrence would not, individually or
in the aggregate, have a Material Adverse Effect;
(n) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, NASDAQ, or
approval of the shareholders of the Company, is required in connection with the
issuance and sale of the Shares and the related Rights or the consummation by
the Company of the transactions contemplated hereby, other than
(i) registration of the Shares and the Rights under the Act, which has been
effected, (ii) any necessary qualification under the securities or blue sky
laws of the various jurisdictions in which the Shares are being offered by the
Underwriters or (iii) under the Conduct Rules of the Financial Industry
Regulatory Authority, Inc. (“FINRA”);
(o) except as
described in the Registration Statement (excluding the exhibits thereto) and the
Prospectus, (i) no person has the right, contractual or otherwise, to cause
the Company to issue or sell to it any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, (ii) no
person has any preemptive rights, resale rights, rights of first refusal or
other rights to purchase any shares of Common Stock or shares of any other
capital stock of or other equity interests in the Company and (iii) no
person has the right to act as an underwriter or as a financial advisor to the
Company in connection with the offer and sale of the Shares; no person has the
right, contractual or otherwise, to cause the Company to register under the Act
any shares of Common Stock or shares of any other capital stock of or other
equity interests or securities in the Company, or to include any such shares or
interests or securities in the Registration Statement or the offering
contemplated thereby;
(p) each of
the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order to conduct
their respective businesses, except where the failure to have or obtain such
licenses, authorizations, consents and approvals would not, individually or in
the aggregate, have a Material Adverse Effect; neither the Company nor any of
the Subsidiaries is in violation of, or in default under, or has received notice
of any proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company or
any of the Subsidiaries, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect;
(q) there are
no actions, suits, claims, investigations or proceedings pending or, to the
Company’s knowledge, threatened or contemplated to which the Company or any of
the Subsidiaries or any of their respective directors or officers is or would be
a party or of which any of their respective properties is or would be subject at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, NASDAQ), except any such action, suit, claim,
investigation or proceeding which, if resolved adversely to the Company or any
Subsidiary, would not, individually or in the aggregate, have a Material Adverse
Effect;
(r) Deloitte
& Touche LLP and Ernst & Young LLP, each of whose report on the
consolidated financial statements of the Company and the Subsidiaries is
included or incorporated by reference in the Registration Statement and the
Prospectus, are each an independent public accounting firm as required by the
Act and by the rules of the Public Company Accounting Oversight Board and to the
best of our knowledge are each registered as such;
- 5
- -
(s) the
financial statements included or incorporated by reference in the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any,
together with the related notes and schedules, present fairly the consolidated
financial position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations, cash flows and changes in
shareholders’ equity of the Company for the periods specified have been prepared
in compliance with the requirements of the Act and Exchange Act and in
conformity with U.S. generally accepted accounting principles applied on a
consistent basis during the periods involved; the other financial and
statistical data contained or incorporated by reference in the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any,
are accurately and fairly presented and prepared on a basis consistent with the
financial statements and books and records of the Company; there are no
financial statements (historical or pro forma) that are required to be included
or incorporated by reference in the Registration Statement or the Prospectus
that are not included or incorporated by reference as required; the Company and
the Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not described in the
Registration Statement (excluding the exhibits thereto) and the Prospectus; and
all disclosures contained or incorporated by reference in the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any,
regarding “non-GAAP financial measures” (as such term is defined by the rules
and regulations of the Commission) comply with Regulation G of the Exchange Act
and Item 10 of Regulation S-K under the Act, to the extent
applicable;
(t) subsequent
to the respective dates as of which information is given in the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any,
in each case excluding any amendments or supplements to the foregoing made after
the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material adverse
change, in the business, properties, management, financial condition or results
of operations of the Company and the Subsidiaries taken as a whole,
(ii) any transaction which is material to the Company and the Subsidiaries
taken as a whole, (iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the Company or any
Subsidiary, which is material to the Company and the Subsidiaries taken as a
whole, (iv) any change in the capital stock of the Company, except for the
issuance of stock pursuant to the exercise of stock options outstanding, or
pursuant to the stock option plans of the Company in effect, in each case, as of
the dates as of which information is given in the Registration Statement and the
Prospectus and disclosed therein in the section entitled “Capitalization,” or
outstanding indebtedness of the Company or any Subsidiaries or (v) any
dividend or distribution of any kind declared, paid or made on the capital stock
of the Company or any Subsidiary;
(u) the
Company has obtained for the benefit of the Underwriters the agreement, in the
form set forth as Exhibit A hereto, of
each of its directors and “officers” (within the meaning of Rule 16a-1(f)
under the Exchange Act) (each a “Lock-Up Agreement”
and collectively, the “Lock-Up
Agreements”);
(v) neither
the Company nor any Subsidiary is, and at no time during which a prospectus is
required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any
sale of Shares will either of them be, and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof, neither of
them will be, an “investment company” or an entity “controlled” by an
“investment company,” as such terms are defined in the Investment Company Act of
1940, as amended (the “Investment Company
Act”);
(w) neither
the Company nor any Subsidiary is and, after giving effect to the offering and
sale of the Shares, neither will be a “holding company” or a “subsidiary
company” of a “holding company” or an “affiliate” of a “holding company” or of a
“subsidiary company,” as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended;
(x) the
Company and each of the Subsidiaries have good and marketable title to all
property (real and personal) described in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, as being owned
by any of them, free and clear of all liens, claims, security interests or other
encumbrances, except such as are described in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or such as do
not materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and
its Subsidiaries; all the property described in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, as being held
under lease by the Company or a Subsidiary is held thereby under valid,
subsisting and enforceable leases;
- 6
- -
(y) the
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames, service
names, copyrights, trade secrets and other proprietary information described in
the Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned or licensed by them or which are necessary
for the conduct of their respective businesses as currently conducted or as
proposed to be conducted, except where the failure to own, license or have such
rights would not, individually or in the aggregate, have a Material Adverse
Effect (collectively, “Intellectual
Property”); there are no third parties who have or, to the Company’s
knowledge, will be able to establish rights to any Intellectual Property, except
for, and to the extent of, the ownership rights of the owners of the
Intellectual Property which is licensed to the Company; to the knowledge of the
Company, there is no infringement by third parties of any Intellectual Property;
there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the Company’s rights in or to any
Intellectual Property, except as would not, individually or in the aggregate,
have a Material Adverse Effect, and the Company is unaware of any facts which
could form a reasonable basis for any such action, suit, proceeding or claim;
there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity, enforceability or scope
of any Intellectual Property, and the Company is unaware of any facts which
could form a reasonable basis for any such action, suit, proceeding or claim;
there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others that the Company or any Subsidiary infringes or
otherwise violates, any patent, trademark, tradename, service name, copyright,
trade secret or other proprietary rights of others, and the Company is unaware
of any facts which could form a reasonable basis for any such action, suit,
proceeding or claim; the Company and the Subsidiaries have complied in all
material respects with the terms of each agreement pursuant to which
Intellectual Property has been licensed to the Company or any Subsidiary, and
all such agreements are in full force and effect; to the knowledge of the
Company, there is no patent or patent application that contains claims that
interfere with the issued or pending claims of any of the Intellectual Property
or that challenges the validity, enforceability or scope of any of the
Intellectual Property; and to the knowledge of the Company, there is no prior
art that may render any patent application within the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and Trademark
Office;
(z) neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor practice
complaint pending or, to the Company’s knowledge, threatened against the Company
or any of the Subsidiaries before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending or, to the Company’s knowledge, threatened,
(B) no strike, labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company or any of the Subsidiaries
and (C) no union representation dispute currently existing concerning the
employees of the Company or any of the Subsidiaries, (ii) to the Company’s
knowledge, no union organizing activities are currently taking place concerning
the employees of the Company or any of the Subsidiaries and (iii) there has
been no violation of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees, any applicable wage
or hour laws, any provision of the Worker Adjustment and Retraining Notification
Act of 1988, as amended (“WARN Act”) or the
WARN Act’s state, foreign or local equivalent, or any provision of the Employee
Retirement Income Security Act of 1974 or the rules and regulations promulgated
thereunder concerning the employees of the Company or any of the
Subsidiaries;
(aa) the
Company and the Subsidiaries and their respective properties, assets and
operations are in compliance with, and the Company and each of the Subsidiaries
hold all permits, authorizations and approvals required under, Environmental
Laws (as defined below), except to the extent that failure to so comply or to
hold such permits, authorizations or approvals would not, individually or in the
aggregate, have a Material Adverse Effect or would otherwise require disclosure
in the Registration Statement and the Prospectus; there are no past, present or,
to the Company’s knowledge, reasonably anticipated future events, conditions,
circumstances, activities, practices, actions, omissions or plans that could
reasonably be expected to give rise to any material costs or liabilities to the
Company or any Subsidiary under, or to interfere with or prevent compliance by
the Company or any Subsidiary with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect or would
otherwise require disclosure in the Registration Statement and the Prospectus,
neither the Company nor any of the Subsidiaries (i) is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party
to or affected by any pending or, to the Company’s knowledge, threatened action,
suit or proceeding, (iv) is bound by any judgment, decree or order or
(v) has entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or any actual or alleged release or
threatened release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “Environmental Law”
means any federal, state, local or foreign law, statute, ordinance, rule,
regulation, order, decree, judgment, injunction, permit, license, authorization
or other binding requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous Materials”
means any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or may give rise
to liability under any Environmental Law);
(bb) in the
ordinary course of their business, the Company and each of the Subsidiaries
conduct periodic reviews of the effect of the Environmental Laws on their
respective businesses, operations and properties, in the course of which they
identify and evaluate associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for cleanup, closure
of properties or compliance with the Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any potential
liabilities to third parties);
- 7
- -
(cc) all tax
returns required to be filed by the Company or any of the Subsidiaries have been
timely filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions to
tax or penalties applicable thereto due or claimed to be due from such entities
have been timely paid, other than those being contested in good faith and for
which adequate reserves have been provided;
(dd) the
Company and each of the Subsidiaries maintain insurance covering their
respective properties, operations, personnel and businesses as the Company
reasonably deems adequate; such insurance insures against such losses and risks
to an extent which is adequate in accordance with customary industry practice to
protect the Company and the Subsidiaries and their respective businesses; all
such insurance is fully in force on the date hereof and will be fully in force
at the time of purchase; neither the Company nor any Subsidiary has reason to
believe that it will not be able to renew any such insurance as and when such
insurance expires;
(ee) neither
the Company nor any Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or agreements
referred to or described in the Prospectus or any Permitted Free Writing
Prospectus, or referred to or described in, or filed as an exhibit to, the
Registration Statement or any Incorporated Document, and no such termination or
non-renewal has been threatened by the Company or any Subsidiary or, to the
Company’s knowledge, any other party to any such contract or agreement, except
for such terminations or non-renewals which would not, individually or in the
aggregate, have a Material Adverse Effect;
(ff) the
Company and each of the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles
and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(gg) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known
to the Company’s Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the
Company’s independent auditors and the Audit Committee of the Board of Directors
of the Company have been advised of: (i) all significant
deficiencies, if any, in the design or operation of internal controls which
could adversely affect the Company’s ability to record, process, summarize and
report financial data; and (ii) all fraud, if any, whether or not material,
that involves management or other employees who have a role in the Company’s
internal controls; all material weaknesses, if any, in internal controls have
been identified to the Company’s independent auditors; since the date of the
most recent evaluation of such disclosure controls and procedures and internal
controls, there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and material
weaknesses; the principal executive officers (or their equivalents) and
principal financial officers (or their equivalents) of the Company have made all
certifications required by the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”)
and any related rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and correct; the
Company, the Subsidiaries and the Company’s directors and officers are each in
compliance in all material respects with all applicable effective provisions of
the Sarbanes-Oxley Act and the rules and regulations of the Commission and
NASDAQ promulgated thereunder;
(hh) each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained or incorporated by reference in the
Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, has been made or reaffirmed with a reasonable basis and in
good faith;
(ii) all
statistical or market-related data included or incorporated by reference in the
Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are based on or derived from sources that the Company
reasonably believes to be reliable and accurate, and the Company has obtained
the written consent to the use of such data from such sources to the extent
required;
- 8
- -
(jj) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder; and the Company,
the Subsidiaries and, to the knowledge of the Company, its affiliates have
instituted and maintain policies and procedures designed to ensure continued
compliance therewith;
(kk) the
operations of the Company and the Subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, 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 or non-governmental
authority involving the Company or any of the Subsidiaries with respect to the
Money Laundering Laws is pending or, to the Company’s knowledge,
threatened;
(ll) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any U.S. 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 of the
Shares contemplated hereby, 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;
(mm) no
Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the
Company, except as described in the Registration Statement (excluding the
exhibits thereto) and the Prospectus;
(nn) the
issuance and sale of the Shares as contemplated hereby will not cause any holder
of any shares of capital stock, securities convertible into or exchangeable or
exercisable for capital stock or options, warrants or other rights to purchase
capital stock or any other securities of the Company to have any right to
acquire any shares of preferred stock of the Company;
(oo) the
Company has not received any notice from NASDAQ regarding the delisting of the
Common Stock from NASDAQ;
(pp) except
pursuant to this Agreement, neither the Company nor any of the Subsidiaries has
incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Registration
Statement;
(qq) neither
the Company nor any of the Subsidiaries nor any of their respective directors,
officers or, to the knowledge of the Company, any of their affiliates or
controlling persons has taken, directly or indirectly, any action designed, or
which has constituted or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(rr) to the
Company’s knowledge, there are no affiliations or associations between
(i) any member of FINRA and (ii) the Company or any of the Company’s
officers, directors or 5% or greater security holders or any beneficial owner of
the Company’s unregistered equity securities that were acquired at any time on
or after the 180th day immediately preceding the date the Registration Statement
was initially filed with the Commission, except as disclosed in the Registration
Statement (excluding the exhibits thereto) and the Prospectus; and
- 9
- -
(ss) the
statements in the Prospectus Supplement under the heading “United States Federal
Income Tax Consequences to Non-U.S. Holders,” in the Company’s Form 8-A
registration statement for the Common Stock filed on September 18, 1993 and
in the Company’s Form 8-A registration statement for the Rights filed on
December 16, 2002, in the Company’s Annual Report on Form 10-K for the
year ended December 31, 2008 under Part I—Item I—“Business—Other
Business Considerations,” under Part I—Item 1A—“Risk Factors—Changes in
environmental regulations, violations of the regulations or future environmental
liabilities could cause us to incur significant costs and adversely affect our
operations,” and under Part I—Item 3—“Legal Proceedings,” and in the
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2009 under Part II—Item I—“Legal Proceedings,” in each case insofar as such
statements constitute summaries of documents or legal proceedings or refer to
matters of law or legal conclusions, are accurate and complete in all material
respects and present fairly the information purported to be shown.
In
addition, any certificate signed by any officer of the Company or any of the
Subsidiaries and delivered to the Underwriters or counsel for the Underwriters
in connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
4. Certain Covenants of the
Company. The Company hereby agrees:
(a) to
furnish such information as may be required and otherwise to cooperate in
qualifying the Shares and the Rights for offering and sale under the securities
or blue sky laws of such states or other jurisdictions as the Underwriters may
designate and to maintain such qualifications in effect so long as the
Underwriters may request for the distribution of the Shares and the Rights;
provided, however, that the
Company shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares); and to
promptly advise the Underwriters of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for offer or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(b) to make
available to the Underwriters in New York City, as soon as practicable after
this Agreement becomes effective, and thereafter from time to time to furnish to
the Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the Effective Time) as the Underwriters may reasonably
request for the purposes contemplated by the Act; in case any Underwriter is
required to deliver (whether physically or through compliance with Rule 172
under the Act or any similar rule), in connection with the sale of the Shares, a
prospectus after the nine-month period referred to in Section 10(a)(3) of the
Act, or after the time a post-effective amendment to the Registration Statement
is required pursuant to Item 512(a) of Regulation S-K under the Act, the
Company will prepare, at its expense, promptly upon request such amendment or
amendments to the Registration Statement and the Prospectus as may be necessary
to permit compliance with the requirements of Section 10(a)(3) of the Act or
Item 512(a) of Regulation S-K under the Act, as the case may
be;
(c) if, at
the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement to be
filed with the Commission and become effective before the Shares may be sold,
the Company will use its best efforts to cause such post-effective amendment to
be filed and become effective; and the Company will advise the Underwriters
promptly and, if requested by the Underwriters, will confirm such advice in
writing, (i) when such post-effective amendment has become effective, and
(ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner in accordance with such
Rules);
(d) if, at
any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, the Registration
Statement shall cease to comply with the requirements of the Act with respect to
eligibility for the use of the form on which the Registration Statement was
filed with the Commission or the Registration Statement shall cease to be an
“automatic shelf registration statement” (as defined in Rule 405 under the
Act) or the Company shall have received, from the Commission, a notice, pursuant
to Rule 401(g)(2), of objection to the use of the form on which the
Registration Statement was filed with the Commission, to (i) promptly
notify the Underwriters, (ii) promptly file with the Commission a new
registration statement under the Act, relating to the Shares, or a
post-effective amendment to the Registration Statement, which new registration
statement or post-effective amendment shall comply with the requirements of the
Act and shall be in a form satisfactory to the Underwriters, (iii) use its
best efforts to cause such new registration statement or post-effective
amendment to become effective under the Act as soon as practicable,
(iv) promptly notify the Underwriters of such effectiveness and
(v) take all other action necessary or appropriate to permit the public
offering and sale of the Shares to continue as contemplated in the Prospectus;
all references herein to the Registration Statement shall be deemed to include
each such new registration statement or post-effective amendment, if
any;
- 10
- -
(e) if the
third anniversary of the initial effective date of the Registration Statement
(within the meaning of Rule 415(a)(5) under the Act) shall occur at any
time during the period when a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or
any similar rule) in connection with any sale of Shares, to file with the
Commission, prior to such third anniversary, a new registration statement under
the Act relating to the Shares, which new registration statement shall comply
with the requirements of the Act (including, without limitation,
Rule 415(a)(6) under the Act) and shall be in a form satisfactory to the
Underwriters; such new registration statement shall constitute an “automatic
shelf registration statement” (as defined in Rule 405 under the Act); provided, however, that if the
Company is not then eligible to file an “automatic shelf registration statement”
(as defined in Rule 405 under the Act), then such new registration
statement need not constitute an “automatic shelf registration statement” (as
defined in Rule 405 under the Act), but the Company shall use its best
efforts to cause such new registration statement to become effective under the
Act as soon as practicable, but in any event within 180 days after such third
anniversary and promptly notify the Underwriters of such effectiveness; the
Company shall take all other action necessary or appropriate to permit the
public offering and sale of the Shares to continue as contemplated in the
Prospectus; all references herein to the Registration Statement shall be deemed
to include each such new registration statement, if any;
(f) to advise
the Underwriters promptly, confirming such advice in writing, of any request by
the Commission for amendments or supplements to the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings
for, or the entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its
reasonable best efforts to obtain the lifting or removal of such order as soon
as possible; to advise the Underwriters promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, and to provide the
Underwriters and Underwriters’ counsel copies of any such documents for review
and comment a reasonable amount of time prior to any proposed filing and to file
no such amendment or supplement to which the Underwriters shall object in
writing;
(g) subject
to Section 4(f) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by
the Company with the Commission in order to comply with the Exchange Act for so
long as a prospectus is required by the Act to be delivered (whether physically
or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares; and to provide the Underwriters, for the
Underwriters’ review and comment, with a copy of such reports and statements and
other documents to be filed by the Company pursuant to Section 13, 14 or 15(d)
of the Exchange Act during such period a reasonable amount of time prior to any
proposed filing, and to file no such report, statement or document to which the
Underwriters shall have objected in writing; and to promptly notify the
Underwriters of such filing;
(h) to pay
the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by
Rule 456(b)(1)(i) under the Act (without reliance on the proviso to
Rule 456(b)(1)(i) under the Act) and in compliance with
Rule 456(b) and Rule 457(r) under the Act;
(i) to advise
the Underwriters promptly of the happening of any event within the period during
which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, which event could require the making of any
change in the Prospectus then being used so that the Prospectus would not
include an 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 are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend
or supplement the Prospectus to cause the Prospectus to comply with the
requirements of the Act, and, in each case, during such time, subject to Section
4(f) hereof, to prepare and furnish, at the Company’s expense, to the
Underwriters promptly such amendments or supplements to such Prospectus as may
be necessary to reflect any such change or to effect such
compliance;
(j) to make
generally available to its security holders, and to deliver to the Underwriters,
an earnings statement of the Company (which will satisfy the provisions of
Section 11(a) of the Act) covering a period of twelve months beginning after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act) as soon as is reasonably practicable after the termination of
such twelve-month period but in any case not later than August 28,
2010;
- 11
- -
(k) to
furnish to the Underwriters two copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto (including
all exhibits thereto and documents incorporated by reference
therein);
(l) to
furnish to the Underwriters as early as practicable prior to the time of
purchase, but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been read by
the Company’s independent registered public accountants, as stated in their
letter to be furnished pursuant to Sections 6(d) and (e) hereof;
(m) to apply
the net proceeds from the sale of the Shares in the manner set forth under the
caption “Use of Proceeds” in the Prospectus Supplement;
(n) to pay
all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Basic Prospectus, the Prospectus
Supplement, the Prospectus, each Permitted Free Writing Prospectus and any
amendments or supplements thereto, and the printing and furnishing of copies of
each thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the Shares
including any stock or transfer taxes and stamp or similar duties payable upon
the sale, issuance or delivery of the Shares to the Underwriters, (iii) the
producing, word processing and/or printing of this Agreement, any agreement
among underwriters, any dealer agreements, any powers of attorney and any
closing documents (including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters and
(except closing documents) to dealers (including costs of mailing and shipment),
(iv) the qualification of the Shares for offering and sale under state or
foreign laws and the determination of their eligibility for investment under
state or foreign law (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and furnishing
of copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on NASDAQ,
(vi) any filing for review of the public offering of the Shares by FINRA,
including the legal fees and filing fees and other disbursements of counsel to
the Underwriters relating to FINRA matters, (vii) the fees and
disbursements of any transfer agent or registrar for the Shares, (viii) the
costs and expenses of the Company relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Shares to prospective investors and the Underwriters’ sales forces, including,
without limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations, travel, lodging and other expenses incurred by the
officers of the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, and (ix) the performance of the
Company’s other obligations hereunder; provided, however, that in no
event shall the Company be required to pay the legal fees for counsel to the
Underwriters, except as provided herein;
(o) to comply
with Rule 433(d) under the Act (without reliance on Rule 164(b) under
the Act) and with Rule 433(g) under the Act;
(p) beginning
on the date hereof and ending on, and including, the date that is 60 days after
the date of the Prospectus Supplement (the “Lock-Up Period”),
without the prior written consent of the Underwriters, not to (i) issue,
sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any
option to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, 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 and the rules and regulations of the Commission promulgated
thereunder, with respect to, any Common Stock, or any other securities of the
Company that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any warrants or other
rights to purchase, the foregoing, (ii) file or cause to become effective a
registration statement under the Act relating to the offer and sale of any
Common Stock, or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing,
(iii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of Common
Stock, or any other securities of the Company that are substantially similar to
Common Stock, or any securities convertible into or exchangeable or exercisable
for, or any warrants or other rights to purchase, the foregoing, whether any
such transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise or (iv) publicly announce an intention to
effect any transaction specified in clause (i), (ii) or (iii), except, in
each case, for (A) the registration of the offer and sale of the Shares as
contemplated by this Agreement, (B) issuances of Common Stock upon the
exercise of options or warrants disclosed as outstanding in the Registration
Statement (excluding the exhibits thereto) and the Prospectus, and (C) the
issuance of employee stock options not exercisable (other than pursuant to
provisions for automatic acceleration of exercisability in connection with a
change in control of the Company) during the Lock-Up Period pursuant to stock
option plans described in the Registration Statement (excluding the exhibits
thereto) and the Prospectus;
- 12
- -
(q) prior to
the time of purchase to issue no press release or other communication directly
or indirectly and hold no press conferences with respect to the Company or any
Subsidiary, the financial condition, results of operations, business,
properties, assets, or liabilities of the Company or any Subsidiary, or the
offering of the Shares, without the Underwriters’ prior consent;
(r) not, at
any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act), or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than the
Prospectus;
(s) not to,
and to cause the Subsidiaries not to, take, directly or indirectly, any action
designed, or which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Shares;
(t) to use
its best efforts to cause the Shares to be listed on NASDAQ and to maintain the
listing of the Common Stock for quotation on NASDAQ;
(u) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock;
(v) to use
the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Prospectus Supplement under the caption
“Use of Proceeds”; and
(w) that,
with out the prior consent of the Underwriters, it has not made and will not
make any offer relating to the Shares that would constitute a “free writing
prospectus” (as defined in Rule 405 under the Act); the Company has
complied and will comply with the requirements of Rule 433 under the Act
applicable to any Permitted Free Writing Prospectus, including timely filing
with the Commission or retention where required and legending; and the Company
agrees that if at any time following issuance of any Permitted Free Writing
Prospectus any event occurred or occurs as a result of which such Permitted Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Disclosure Package or the Prospectus or would include an 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 are made, not misleading, the Company will give prompt notice thereof
to the Underwriters and, if requested by the Underwriters, will prepare and
furnish without charge to the Underwriters a Permitted Free Writing Prospectus
or other document which will correct such conflict, statement or
omission.
5. Reimbursement of the
Underwriter’s Expenses. If the Shares are not delivered for
any reason other than the default of the Underwriters in its or their respective
obligations hereunder, the Company shall, in addition to paying the amounts
described in Section 4(n) hereof, reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of their
counsel.
6. Conditions of the
Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties on the part of the Company on the date hereof, at the time of
purchase, the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The
Company shall furnish to the Underwriters at the time of purchase an opinion of
Perkins Coie LLP, counsel for the Company, addressed to the Underwriters, and
dated the time of purchase, in form and substance satisfactory to the
Underwriters, as to the matters set forth in Exhibit B
hereto.
(b) The
Company shall furnish to the Underwriters at the time of purchase an opinion of
John W. Holleran, Senior Vice President, General Counsel and Corporate Secretary
of the Company, addressed to the Underwriters, and dated the time of purchase,
in form and substance satisfactory to the Underwriters, as to the matters set
forth in Exhibit
C hereto.
- 13
- -
(c) The
Company shall furnish to the Underwriters at the time of purchase an opinion of
Arendt & Medernach, Luxembourg counsel for the Company, addressed to the
Underwriters, and dated the time of purchase, in form and substance satisfactory
to the Underwriters, as to the matters set forth in Exhibit D
hereto.
(d) The
Underwriters shall have received from Deloitte & Touche LLP letters dated,
respectively, the date of the Prospectus Supplement and the time of purchase and
addressed to the Underwriters in the forms satisfactory to the Underwriters,
which letters shall cover, without limitation, the various financial disclosures
contained in the Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any.
(e) The
Underwriters shall have received from Ernst & Young LLP letters dated,
respectively, the date of the Prospectus Supplement and the time of purchase and
addressed to the Underwriters in the forms satisfactory to the Underwriters,
which letters shall cover, without limitation, the various financial disclosures
contained in the Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any.
(f) The
Underwriters shall have received at the time of purchase, the favorable opinion
of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters,
dated the time of purchase, in form and substance reasonably satisfactory to the
Underwriters.
(g) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which the Underwriters shall have objected
in writing.
(h) The
Prospectus Supplement shall have been filed with the Commission pursuant to
Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on
the second full business day after the date of this Agreement (or such earlier
time as may be required under the Act).
(i) Prior to
and at the time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under the Act
or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the
Registration Statement and all amendments thereto shall 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 not misleading;
(iii) neither the Prospectus nor amendment or supplement thereto shall
include an 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 are made, not misleading; (iv) no Disclosure
Package, and no amendment or supplement thereto, shall include an 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 are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an 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 are made, not
misleading.
(j) The
Company will, at the time of purchase deliver to the Underwriters a certificate
of its Chief Executive Officer and its Chief Financial Officer, dated the time
of purchase, in the form attached as Exhibit E
hereto.
(k) The
Underwriters shall have received each of the signed Lock-Up Agreements referred
to in Section 3(u) hereof, and each such Lock-Up Agreement shall be in full
force and effect at the time of purchase.
(l) The
Company shall have furnished to the Underwriters such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus
as of the time of purchase as the Underwriters may reasonably
request.
(m) The
Shares shall have been approved for listing on the NASDAQ, subject only to
notice of issuance at or prior to the time of purchase.
(n) FINRA
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
- 14
- -
7. Effective Date of Agreement;
Termination. This Agreement shall become effective when the
parties hereto have executed and delivered this Agreement.
The
obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of Canaccord Adams Inc., if (1) since the
time of execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, there has been any change or any
development involving a prospective change in the business, properties,
management, financial condition or results of operations of the Company and the
Subsidiaries taken as a whole, the effect of which change or development is, in
the sole judgment of Canaccord Adams Inc., so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any,
or (2) since the time of execution of this Agreement, there shall have
occurred: (A) a suspension or material limitation in trading in
securities generally on NASDAQ or the New York Stock Exchange; (B) a
suspension or material limitation in trading in the Company’s securities on
NASDAQ; (C) a general moratorium on commercial banking activities declared
by either federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (D) an outbreak or escalation of hostilities or acts of terrorism
involving the United States or a declaration by the United States of a national
emergency or war; or (E) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (D) or (E), in the sole
judgment of Canaccord Adams Inc., makes it impractical or inadvisable to proceed
with the public offering or the delivery of the Shares on the terms and in the
manner contemplated in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or (3) since the time of execution
of this Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of: (A) any intended
or potential downgrading or (B) any watch, review or possible change that
does not indicate an affirmation or improvement in the rating accorded any
securities of or guaranteed by the Company or any Subsidiary by any “nationally
recognized statistical rating organization,” as that term is defined in
Rule 436(g)(2) under the Act.
If
Canaccord Adams Inc. elects to terminate this Agreement as provided in this
Section 6, the Company and each other Underwriter shall be notified promptly in
writing.
If the
sale to the Underwriters of the Shares, as contemplated by this Agreement, is
not carried out by the Underwriters for any reason permitted under this
Agreement, or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be
under no obligation or liability to the Company under this Agreement (except to
the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters’
Commitments. Subject to Sections 6 and 7 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm
Shares to be purchased by it hereunder (otherwise than for a failure of a
condition set forth in Section 6 hereof or a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7 hereof) and if
the number of Firm Shares which all Underwriters so defaulting shall have agreed
but failed to take up and pay for does not exceed 10% of the total number of
Firm Shares, the non-defaulting Underwriters (including the Underwriters, if
any, substituted in the manner set forth below) shall take up and pay for (in
addition to the aggregate number of Firm Shares they are obligated to purchase
pursuant to Section 1 hereof) the number of Firm Shares agreed to be purchased
by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriters in
such amount or amounts as the Underwriters may designate with the consent of
each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters
pro rata in proportion to the aggregate number of Firm Shares set forth opposite
the names of such non-defaulting Underwriters in Schedule
A.
Without
relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm
Shares hereunder unless all of the Firm Shares are purchased by the Underwriters
(or by substituted Underwriters selected by the Underwriters with the approval
of the Company or selected by the Company with the Underwriters'
approval).
If a new
Underwriter or Underwriters are substituted by the Underwriters or by the
Company for a defaulting Underwriter or Underwriters in accordance with the
foregoing provision, the Company or you shall have the right to postpone the
time of purchase for a period not exceeding five business days in order that any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term
“Underwriter” as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 8 with like effect as if such
substituted Underwriter had originally been named in Schedule A
hereto.
If the
aggregate number of Firm Shares which the defaulting Underwriter or Underwriters
agreed to purchase exceeds 10% of the total number of Firm Shares which all
Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Firm Shares which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability
on the part of the Company to any Underwriter and without any liability on the
part of any non-defaulting Underwriter to the Company. Nothing in
this paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
- 15
- -
9. Indemnity and
Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, any person who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company) or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with
information concerning such Underwriter furnished in writing by or on behalf of
such Underwriter through the Underwriters to the Company expressly for use in,
the Registration Statement or arises out of or is based upon any omission or
alleged omission to state a material fact in the Registration Statement in
connection with such information, which material fact was not contained in such
information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading
or (ii) any untrue statement or alleged untrue statement of a material fact
included in any Prospectus (the term Prospectus for the purpose of this Section
9 being deemed to include any Basic Prospectus, the Prospectus Supplement, the
Prospectus and any amendments or supplements to the foregoing), in any Permitted
Free Writing Prospectus, in any “issuer information” (as defined in
Rule 433 under the Act) of the Company or in any Prospectus together with
any combination of one or more of the Permitted Free Writing Prospectuses, if
any, or arises out of or is based upon any omission or alleged omission 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, except, with
respect to such Prospectus or Permitted Free Writing Prospectus, insofar as any
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through the Underwriters to the
Company expressly for use in, such Prospectus or Permitted Free Writing
Prospectus or arises out of or is based upon any omission or alleged omission to
state a material fact in such Prospectus or Permitted Free Writing Prospectus in
connection with such information, which material fact was not contained in such
information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under which
they were made, not misleading.
(b) Each
Underwriter severally agrees to indemnify, defend and hold harmless the Company,
its directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter to the Company
expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company), or
arises out of or is based upon any omission or alleged omission to state a
material fact in such Registration Statement in connection with such
information, which material fact was not contained in such information and which
material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by
or on behalf of such Underwriter through the Underwriters to the Company
expressly for use in, a Prospectus or a Permitted Free Writing Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact in such Prospectus or Permitted Free Writing Prospectus in
connection with such information, which material fact was not contained in such
information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under which
they were made, not misleading.
- 16
- -
(c) If any
action, suit or proceeding (each, a “Proceeding”) is brought against a person
(an “indemnified party”) in respect of which indemnity may be sought against the
Company or an Underwriter (as applicable, the “indemnifying party”) pursuant to
subsection (a) or (b), respectively, of this Section 9, such indemnified party
shall promptly notify such indemnifying party in writing of the institution of
such Proceeding and such indemnifying party shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however, that
the omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have to
any indemnified party or otherwise. The indemnified party or parties
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the
defense of such Proceeding or the indemnifying party shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to such
indemnifying party (in which case such indemnifying party shall not have the
right to direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by such indemnifying party and paid as incurred (it being understood, however,
that such indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The
indemnifying party shall not be liable for any settlement of any Proceeding
effected without its written consent, such consent not to be unreasonably
withheld, but, if settled with its written consent, such indemnifying party
agrees to indemnify and hold harmless the indemnified party or parties from and
against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this Section 9(c), then the indemnifying party agrees that it shall
be liable for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than 60 business days
after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have fully reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault or culpability or a
failure to act by or on behalf of such indemnified party.
(d) If the
indemnification provided for in this Section 9 is unavailable to an indemnified
party under subsections (a) and (b) of this Section 9 or insufficient to hold an
indemnified party harmless in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then each applicable indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, damages, expenses, liabilities or claims (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, damages, expenses, liabilities or claims, as well
as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same respective proportions as the total proceeds from
the offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate public offering
price of the Shares. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue statement or alleged untrue statement of
a material fact or omission or alleged omission relates to information supplied
by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a
result of the losses, damages, expenses, liabilities and claims referred to in
this subsection shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(e) The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding
the provisions of this Section 9, the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which such Underwriter
has otherwise been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 9 are several in proportion to their
respective underwriting commitments and not joint.
- 17
- -
(f) The
indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, its partners, directors or officers or
any person (including each partner, director or officer of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, or by or on behalf of the Company, its directors or
officers or any person who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Shares. The
Company and each Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company,
against any of the Company’s officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement, any Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus.
10. Notices. Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to Canaccord Adams
Inc., 99 High Street, 12th Floor,
Boston, MA 02210, Attention: Syndicate Department (fax
no.:61-7788-1553); and if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at 2111 N. Molter
Road, Liberty Lake, Washington 99019, Attention: John W. Holleran,
Senior Vice President, General Counsel and Corporate Secretary.
In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), the underwriters are required to
obtain, verify and record information that identifies their respective clients,
including the Company, which information may include the name and address of
their respective clients, as well as other information that will allow the
underwriters to properly identify their respective clients.
11. Governing Law;
Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement (“Claim”), directly or
indirectly, shall be governed by, and construed in accordance with, the laws of
the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of this
Agreement.
12. Submission to
Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against any Underwriter
or any indemnified party. Each Underwriter and the Company (on its
behalf and, to the extent permitted by applicable law, on behalf of its
shareholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. The Company
agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any other courts to the jurisdiction of which the Company or
is or may be subject, by suit upon such judgment.
13. Parties at
Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters and the Company and to the extent
provided in Section 9 hereof the controlling persons, partners, directors and
officers referred to in such Section 9, and their respective successors,
assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
14. No Fiduciary
Relationship. The Company hereby acknowledges that the
Underwriters are acting solely as underwriters in connection with the purchase
and sale of the Company’s securities. The Company further
acknowledges that the Underwriters are acting pursuant to a contractual
relationship created solely by this Agreement entered into on an arm’s length
basis, and in no event do the parties intend that the Underwriters act or be
responsible as a fiduciary to the Company, its management, shareholders or
creditors or any other person in connection with any activity that the
Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company’s securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or
similar obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that
effect. The Company and the Underwriters agree that they are each
responsible for making their own independent judgments with respect to any such
transactions and that any opinions or views expressed by the Underwriters to the
Company regarding such transactions, including, but not limited to, any opinions
or views with respect to the price or market for the Company’s securities, do
not constitute advice or recommendations to the Company. The Company
hereby waives and releases, to the fullest extent permitted by law, any claims
that the Company may have against the Underwriters with respect to any breach or
alleged breach of any fiduciary or similar duty to the Company in connection
with the transactions contemplated by this Agreement or any matters leading up
to such transactions.
- 18
- -
15. Counterparts. This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
16. Successors and
Assigns. This Agreement shall be binding upon the Underwriters
and the Company and their successors and assigns and any successor or assign of
any substantial portion of the Company’s and any of the Underwriters’ respective
businesses and/or assets.
[The Remainder of
This Page Intentionally Left Blank; Signature Page Follows]
- 19
- -
If the
foregoing correctly sets forth the understanding among the Company and the
several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and the Underwriters’ acceptance shall
constitute a binding agreement among the Company and the Underwriters,
severally.
Very
truly yours,
Itron,
Inc.
By: /s/ Steven M.
Helmbrecht
Name: Steven
M. Helmbrecht
Title:
Sr. Vice President & CFO
E-1
Accepted
and agreed to as of the date
first
above written, on behalf of itself
Canaccord
Adams Inc.
By: /s/ Jamie Brown
Name: Jamie Brown
Title: President, Head of
Investment Banking, Canaccord Adams
Inc.
Canaccord
Capital Corporation
By: /s/ Jamie Brown
Name: Jamie Brown
Title: President, Head of
Investment Banking, Canaccord Adams
Inc.
Stephens
Inc.
By: /s/ Joseph Mowery
Name: Joseph Mowery
Title: Managing
Director
E-2