Comverge, Inc. 2,400,000 Shares1 Common Stock ($0.001 par value) Underwriting Agreement
Execution Version
EXHIBIT
1.1
2,400,000
Shares1
Common
Stock
($0.001 par
value)
November
19, 2009
RBC
Capital Markets Corporation
Lazard
Capital Markets LLC
▇▇▇▇▇▇ ▇.
▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇▇
Inc.
As
Representatives of the several Underwriters,
c/o RBC
Capital Markets
3 World
Financial Center
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies
and Gentlemen:
Comverge,
Inc., a corporation organized under the laws of Delaware (the “Company”),
proposes to sell to the several underwriters named in Schedule I hereto
(the “Underwriters”), for whom you (the “Representatives”) are acting as
representatives, 2,400,000 shares of common stock, $0.001 par value (“Common
Stock”) of the Company (said shares to be issued and sold by the Company being
hereinafter called the “Underwritten Securities”). The Company also
proposes to grant to the Underwriters an option to purchase up to 360,000
additional shares of Common Stock to cover over-allotments, if any (the “Option
Securities”; the Option Securities, together with the Underwritten Securities,
being hereinafter called the “Securities”). To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Certain terms used herein are defined in
Section 20 hereof. Any reference herein to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act
on or before the Effective Date of the Registration Statement or the issue date
of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as the
case may be; and any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
1. Representations and
Warranties.
(i) The
Company represents and warrants to, and agrees with, each Underwriter as set
forth below in this Section 1.
(a) The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission a registration statement (file number
333-161400) on Form S-3, including a related Base Prospectus, for registration
under the Act of the offering and sale of the Securities. Such Registration
Statement, including any amendments thereto filed prior to the Execution Time,
has become effective. The Company may have filed with the Commission, as part of
an amendment to the Registration Statement or pursuant to Rule 424(b), one or
more preliminary prospectus supplements relating to the Securities, each of
which has previously been furnished to you. The Company will file with the
Commission a final prospectus supplement relating to the Securities in
accordance with Rule 424(b). As filed, such final prospectus supplement shall
contain all information required by the Act and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
Base Prospectus and any Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On the
Effective Date, the Registration Statement did, as of the date hereof, the
Statutory Prospectus does, and when the Prospectus is first filed in accordance
with Rule 424(b) and on the Closing Date (as defined herein) and on any date on
which Option Securities are purchased, if such date is not the Closing Date (a
“settlement date”), the Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the Act and the
Exchange Act; on the Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the date of any
filing pursuant to Rule 424(b) in connection with the offering of the
Securities and on the Closing Date and any settlement date, the Prospectus
(together with any supplement thereto) will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information contained
in or omitted from the Registration Statement, or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
Section 8(b)(i)-(v) hereof.
(c) (i) The
Disclosure Package and the price to the public, the number of Underwritten
Securities and the number of Option Securities to be included on the cover page
of the Prospectus and the information set forth on Schedule II hereto
communicated to each purchaser (the “Offering Information”), when taken together
as a whole, and (ii) each electronic road show when taken together as a whole
with the Disclosure Package and the price to the public, the number of
Underwritten Securities and the number of Option Securities to be included on
the cover page of the Prospectus and the Offering Information, do not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from the Disclosure Package based upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section
8(b)(i)-(v) hereof.
(d) (i) At
the time of filing the Registration Statement and (ii) as of the Execution Time
(with such date being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule
405), without taking account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be considered an Ineligible
Issuer.
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(e) Each
Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any
document incorporated therein by reference and any Preliminary Prospectus or
Prospectus deemed to be a part thereof or included therewith that has not been
superseded or modified. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8(b)(i)-(v)
hereof.
(f) Each of
the Company and its subsidiaries has been duly organized and is validly existing
as a corporation, limited liability company or limited partnership, as the case
may be, in good standing under the laws of the jurisdiction in which it is
organized with full corporate or partnership power and authority to own or
lease, as the case may be, and to operate its properties and conduct its
business as described in the Disclosure Package and the Prospectus, and is duly
qualified to do business as a foreign entity and is in good standing under the
laws of each jurisdiction which requires such qualification.
(g) All of
the outstanding equity interests of each subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Disclosure Package and the Prospectus, all
outstanding equity interests of the subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances, other than those relating to that certain Credit Agreement, dated
as of January 18, 2007, among Alternative Energy Resources, Inc., the other
parties signatory thereto and General Electric Capital Corporation (the “GE
Credit Agreement”) and that certain Loan and Security Agreement, dated November
7, 2008, by and among the Company, the other parties signatory thereto and
Silicon Valley Bank (the “SVB Loan Agreement”).
(h) There is
no franchise, contract or other document of a character required by the Act to
be described in the Registration Statement or Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required (and the
Preliminary Prospectus contains in all material respects the same description of
the foregoing matters contained in the Prospectus); and the statements in the
Registration Statement, the Preliminary Prospectus and the Prospectus under the
heading “Description of Capital Stock,” the statements under the heading “Item
1. Legal Proceedings” in the Company’s Quarterly Report on Form 10-Q for the
quarter ended September 30, 2009, which is incorporated by reference into the
Registration Statement, the Preliminary Prospectus and Prospectus, the
statements under the heading “Item 13. Certain Relationships and Related
Transactions and Director Independence” in the Company’s Annual Report on Form
10-K, which is incorporated by reference into the Registration Statement, the
Preliminary Prospectus and the Prospectus, and the statements contained in the
description of the Company’s Common Stock incorporated into the Registration
Statement, the Preliminary Prospectus and the Prospectus by reference to the
Company’s registration statement on Form 8-A, as amended (File No. 001-33399),
insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings.
(i) This
Agreement has been duly authorized, executed and delivered by the
Company.
(j) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Disclosure Package and the Prospectus, will not be an “investment company” as
defined in the Investment Company Act of 1940, as amended.
(k) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Disclosure Package and the
Prospectus.
(l) Neither
the issue and sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the charter, bylaws or other organizational
documents of the Company or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which the Company or any of its subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties.
(m) Except as
set forth in that certain Amended and Restated Registration Rights Agreement,
dated October 16, 2007, among the Company and the signatories thereto (the
“Registration Rights Agreement”), no holders of securities of the Company have
rights to the registration of such securities under the Registration
Statement.
(n) The
consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included in the Preliminary Prospectus, the
Prospectus and the Registration Statement present fairly the financial
condition, results of operations and cash flows of the Company as of the dates
and for the periods indicated, comply as to form with the applicable accounting
requirements of Regulation S-X and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption
“Item 6. Selected Consolidated Financial Data” in the Company’s Annual Report on
Form 10-K, which is incorporated by reference into the Preliminary Prospectus,
the Prospectus and the Registration Statement, fairly present, on the basis
stated in the Preliminary Prospectus, the Prospectus and the Registration
Statement, the information included therein.
(o) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best knowledge of
the Company, threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the consummation
of any of the transactions contemplated hereby or (ii) could reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole (a “Material Adverse Effect”), whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Prospectus (exclusive
of any supplement thereto).
(p) Each of
the Company and each of its subsidiaries owns, leases or has a license to use
all such properties as are necessary to the conduct of its operations as
presently conducted.
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(q) Neither
the Company nor any subsidiary is in violation or default of (i) any
provision of its charter or bylaws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties, as
applicable, except with respect to clauses (ii) and (iii), for such violation or
default as would not, individually or in the aggregate, have a Material Adverse
Effect.
(r) PricewaterhouseCoopers
LLP, who have expressed its opinion regarding certain financial statements of
the Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
incorporated by reference into the Registration Statement, the Disclosure
Package and the Prospectus, are independent public accountants with respect to
the Company within the meaning of the Act.
(s) There are
no transfer taxes or other similar fees or charges under Federal law or the laws
of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by
the Company or sale by the Company of the Securities.
(t) The
Company and its subsidiaries have filed all tax returns that are required to be
filed or has requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business), except as set
forth in or contemplated in the Disclosure Package and the Prospectus (exclusive
of any supplement thereto), and have paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would not have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(u) No labor
problem or dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is threatened or imminent, which
would have a Material Adverse Effect.
(v) The
Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; all
policies of insurance insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are in full
force and effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; there are no
claims by the Company or any of its subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause, except such that would not have a Material
Adverse Effect; neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Prospectus (exclusive
of any supplement thereto).
(w) Except as
set forth in the GE Credit Agreement and the SVB Loan Agreement, no subsidiary
of the Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the
Company, except as described in or contemplated by the Disclosure Package and
the Prospectus (exclusive of any supplement thereto).
(x) The
Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by all applicable authorities necessary to conduct
their respective businesses now operated by them and possessed at all times
since January 1, 2006 such licenses, certificates, permits and other
authorizations issued by all applicable authorities necessary to conduct their
respective businesses as operated by them at such times, and neither the Company
nor any such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singularly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect, whether or
not arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Prospectus (exclusive
of any supplement thereto).
(y) The
Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with the Company’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with the Company’s general or specific
authorization; and (iv) the recorded accountability for tangible assets is
compared with the existence of tangible assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and its subsidiaries’ internal control over financial reporting are
effective, and the Company and its subsidiaries are not aware of any material
weakness in their internal control over financial reporting. Since
the end of the Company’s most recent audited fiscal year, there has been no
change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(z) The
Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure
controls and procedures are effective.
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(aa) The
Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
(bb) The
Company and its subsidiaries are (i) to the knowledge of the Company, in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”), (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
have not received notice of any actual or potential liability under any
Environmental Law, except where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals, or liability
would not, individually or in the aggregate, have a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto). Except as set forth
in the Disclosure Package and the Prospectus, neither the Company nor any of its
subsidiaries has been named as a “potentially responsible party” under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended.
(cc) None of
the following events has occurred or exists: (i) a failure to fulfill
the obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published interpretations thereunder with
respect to a Plan (as herein defined), determined without regard to any waiver
of such obligations or extension of any amortization period; (ii) an audit or
investigation by the Internal Revenue Service, the U.S. Department of Labor, the
Pension Benefit Guaranty Corporation or any other federal or state governmental
agency or any foreign regulatory agency with respect to the employment or
compensation of employees by any of the Company or any of its subsidiaries that
could have a Material Adverse Effect; or (iii) any breach of any contractual
obligation, or any violation of law or applicable qualification standards, with
respect to the employment or compensation of employees by the Company or any of
its subsidiaries that could have a Material Adverse Effect. None of
the following events has occurred or is reasonably likely to
occur: (i) a material increase in the aggregate amount of
contributions required to be made to all Plans in the current fiscal year of the
Company and its subsidiaries compared to the amount of such contributions made
in the most recently completed fiscal year of the Company and its subsidiaries;
(ii) a material increase in the “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial Accounting Standards
106) of the Company and its subsidiaries in the current fiscal year of the
Company and its subsidiaries compared to the amount of such obligations in the
most recently completed fiscal year of the Company and its subsidiaries; (iii)
any event or condition giving rise to a liability under Title IV of ERISA that
could have a Material Adverse Effect; or (iv) the filing of a claim by one or
more employees or former employees of the Company or any of its subsidiaries
related to their employment that could have a Material Adverse
Effect. For purposes of this paragraph, the term “Plan” means a plan
(within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with
respect to which the Company or any of its subsidiaries may have any
liability.
(dd) There is
and has been no failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with any provision
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in
connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) applicable to the Company and
any of its directors or officers, in their capacities as such, including Section
402 related to loans, Section 404 related to internal controls and Sections 302
and 906 related to certifications.
(ee) Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA; and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA.
(ff) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements and the money laundering statutes and the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(gg) Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by
OFAC.
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(hh) Alternative
Energy Resources, Inc. and Enerwise Global Technologies, Inc. are the only
significant subsidiaries of the Company as defined by Rule 1-02 of
Regulation S-X. Other than Alternative Energy Resources, Inc. and Enerwise
Global Technologies, Inc., all of the Company’s subsidiaries, when taken as a
whole, are not significant subsidiaries of the Company as defined by
Rule 1-02 of Regulation S-X.
(ii) The
Company and its subsidiaries own, possess, license or have other rights to use
all patents, patent applications, trade and service marks, trade and service
▇▇▇▇ registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of the Company’s business as
now conducted or as proposed in the Prospectus to be conducted and
(a) except pursuant to financing agreements that the Company has entered
into, there are no rights of third parties to any such Intellectual Property;
(b) to the knowledge of the Company, there is no material infringement by
third parties of any such Intellectual Property; (c) there is no pending
or, to the knowledge of the Company, threatened action, suit, proceeding or
claim by others challenging the Company’s rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; (d) there is no pending or, to the knowledge of
the Company, threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property, and the Company is
unaware of any facts which would form a reasonable basis for any such claim; (e)
there is no pending or, to the knowledge of the Company, threatened action,
suit, proceeding or claim by others that the Company infringes or otherwise
violates any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any facts which would form a
reasonable basis for any such claim except as could not reasonably be expected
to result in a Material Adverse Effect; (f) there is no U.S. patent or
published U.S. patent application which contains claims that dominate or may
dominate any Intellectual Property described in the Disclosure Package and the
Prospectus as being owned by or licensed to the Company or that interferes with
the issued or pending claims of any such Intellectual Property; and
(g) there is no prior art of which the Company is aware that may render any
U.S. patent held by the Company invalid or any U.S. patent application held by
the Company unpatentable which has not been disclosed to the U.S. Patent and
Trademark Office.
(jj) Except as
disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, the Company (i) does not have any material lending or
other relationship with any bank or lending affiliate of any of the Underwriters
and (ii) does not intend to use any of the proceeds from the sale of the
Securities hereunder to repay any outstanding debt owed to any affiliate of any
of the Underwriters.
(kk) The
Company is subject to and in full compliance with the reporting requirements of
Section 13 or Section 15(d) of the Exchange Act.
(ll) The
Company has not received from the Commission any written or oral comments,
questions or requests for modification of disclosure in respect of any reports
filed with the Commission pursuant to the Exchange Act and incorporated by
reference into the Registration Statement, the Preliminary Prospectus and the
Prospectus, except for comments, questions or requests (i) that have been
satisfied by the provision of supplemental information to the staff of the
Commission or (ii) in respect of which the Company has agreed with the staff of
the Commission to make a prospective change in future reports filed by it with
the Commission pursuant to the Exchange Act, of which agreement the Underwriters
and their counsel have been made aware.
Any
certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and
Sale. (i) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter
agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$9.95 per share, the amount of the Underwritten Securities set forth opposite
such Underwriter’s name in Schedule I hereto.
(ii) Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to 360,000 Option
Securities at the same purchase price per share as the Underwriters shall pay
for the Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any
time on or before the 30th day after the date of the Prospectus upon
written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The
number of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
5
3. Delivery and
Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in
Section 2(ii) hereof shall have been exercised on or before the third
Business Day immediately preceding the Closing Date) shall be made at
10:00 AM, New York City time, on November 24, 2009, or at such
time on such later date not more than three Business Days after the foregoing
date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the “Closing Date”). Delivery
of the Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Underwritten Securities and
the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
If the
option provided for in Section 2(ii) hereof is exercised after the third
Business Day immediately preceding the Closing Date, the Company will deliver
the Option Securities, through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct, on the date specified by
the Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement
for the Option Securities occurs after the Closing Date, the Company will
deliver to the Representatives on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by
Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus. It is further understood that you will act as the
Representatives for the Underwriters in the offering and sale of the Securities
in accordance with the Master Agreement Among Underwriters (the “Master
Agreement Among Underwriters”) entered into by you and the several other
Underwriters.
5. Agreements.
(i) The
Company agrees with the several Underwriters that:
(a) Prior to
the termination of the offering of the Securities, the Company will not file any
amendment to the Registration Statement or supplement to the Preliminary
Prospectus, the Prospectus or any Rule 462(b) Registration Statement unless
the Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. The Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the Representatives with
the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (ii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement shall
have been filed or become effective, (iii) of any request by the Commission
or its staff for any amendment to the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
of any notice objecting to its use or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the occurrence of any such
suspension or objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as possible the
withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration Statement or
a new registration statement and using its best efforts to have such amendment
or new registration statement declared effective as soon as
practicable.
(b) If, at
any time prior to the filing of the Prospectus pursuant to Rule 424(b), any
event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made or the circumstances then prevailing not misleading, the Company
will (i) notify promptly the Representatives so that any use of the Disclosure
Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply
any amendment or supplement to you in such quantities as you may reasonably
request.
(c) If, at
any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made at such time not
misleading, or if it shall be necessary to amend the Registration Statement,
file a new registration statement or supplement the Prospectus to comply with
the Act or the Exchange Act, the Company promptly will (i) notify the
Representatives of any such event; (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5(i), an amendment or supplement or new registration statement
which will correct such statement or omission or effect such compliance;
(iii) use its best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Prospectus; and (iv)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
6
(d) As soon
as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158.
(e) The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172), as
many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free
Writing Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the
offering.
(f) The
Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may reasonably
designate and will maintain such qualifications in effect so long as required
for the distribution of the Securities; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(g) The
Company will not, without the prior written consent of RBC Capital Markets
Corporation and Lazard Capital Markets LLC, offer, sell, contract to sell,
pledge, or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any other shares
of Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock, or publicly announce an intention to
effect any such transaction, for a period of 90 days after the date of
the Underwriting Agreement; provided, however, that the
Company may issue and sell Common Stock pursuant to, and file a registration
statement relating to, any employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the Execution Time, and
the Company may issue Common Stock issuable upon the conversion of securities or
the exercise of warrants outstanding at the Execution
Time. Notwithstanding the foregoing, if (x) during the last 17 days
of the 90-day restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs, or (y) prior
to the expiration of the 90-day restricted period, the Company announces that it
will release earnings results during the 16-day period beginning on the last day
of the 90-day period, the restrictions imposed in this clause shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material
event. The Company will provide the Representatives and any
co-managers and each individual subject to the restricted period pursuant to the
lockup letters described in Section 6(j) with prior notice of any such
announcement that gives rise to an extension of the restricted
period.
(h) The
Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
(i) The
Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the Prospectus
and each Issuer Free Writing Prospectus, and each amendment or supplement to any
of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each Preliminary Prospectus, the
Prospectus and each Issuer Free Writing Prospectus, and all amendments or
supplements to any of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for
the Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of the
Securities under the Exchange Act and the listing of the Securities on the
Nasdaq Global Market; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such registration and qualification);
(vii) any filings required to be made with the Financial Industry
Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable
fees and expenses of counsel for the Underwriters relating to such filings);
(viii) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the Company’s
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; and (x) all other costs and expenses incident to
the performance by the Company of its obligations hereunder.
(j) The
Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has or shall have obtained, as the case
may be, the prior written consent of the Company, it has not made and will not
make any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company with
the Commission or retained by the Company under Rule 433; provided, that the
prior written consent of the parties hereto shall be deemed to have been given
in respect of the Free Writing Prospectuses included in Schedule III hereto and
any electronic road show. Any such free writing prospectus consented
to by the Representatives or the Company, as applicable, is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company agrees that
(x) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
7
6. Conditions to the
Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time,
the Closing Date and any settlement date pursuant to Section 3 hereof, to
the accuracy of the statements of the Company made in any certificates delivered
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The
Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); any material required to be filed
by the Company pursuant to Rule 433(d) under the Act shall have been filed with
the Commission within the applicable time periods prescribed for such filings by
Rule 433; no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened; no stop
order suspending or preventing the use of any Preliminary Prospectus, Prospectus
or any Issuer Free Writing Prospectus shall have been initiated or, to the
knowledge of the Company, shall be contemplated by the Commission; all requests
for additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction; and no injunction, restraining
order, or order of any nature by a Federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would prevent
the issuance of the Securities; and FINRA shall have raised no objection to the
fairness and reasonableness of the terms of this Agreement or the transactions
contemplated hereby or otherwise contained in the Prospectus to be filed with
FINRA.
(b) The
Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the
Company, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, to the effect
that:
(i) the
Registration Statement has become effective under the Act; any required filing
of the Base Prospectus, any Preliminary Prospectus and the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been instituted
or threatened by the Commission and the Registration Statement and the
Prospectus (other than the financial statements and the notes and schedules
thereto, and other financial or accounting data contained or incorporated by
reference therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of the Act and
the Exchange Act (except counsel expresses no statement or belief as to
Regulation S-T); and no facts have come to the attention of such counsel which
lead them to believe that: (A) on the latest Effective Date the
Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, (B) the Prospectus as of its date
and on the Closing Date included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) the Disclosure Package, as amended or supplemented
at the Execution Time, and the price to the public, the number of Underwritten
Securities and the number of Option Securities to be included on the cover page
of the Prospectus and the Offering Information, when taken together as a whole,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (in each case,
other than the financial statements and the notes and schedules thereto, and
other financial or accounting data contained or incorporated by reference
therein, as to which such counsel need express no opinion);
(ii) each of
the Company and Alternative Energy Resources, Inc., Comverge Energy Management,
Inc., Comverge Energy Partners, Ltd., Comverge Giants, LLC, Enerwise Global
Technologies, Inc., PES NY, LLC, Public Energy Solutions NY, LLC and 6D
Comverge, Inc. (each a “Delaware/Texas/New York Subsidiary” and collectively the
“Delaware/Texas/New York Subsidiaries”) has been duly incorporated and is
validly existing as a corporation, limited liability company or limited
partnership in good standing under the laws of the jurisdiction in which it is
chartered or organized, with the corporate or partnership power and authority to
own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Disclosure Package and the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification as set forth on
Schedule V;
(iii) each of
Clean Power Markets, Inc., Comverge Utah, Inc., Public Electric, Inc. and Public
Energy Solutions, LLC is validly existing as a corporation or limited liability
company in good standing under the laws of the jurisdiction in which it is
chartered or organized and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction which
requires such qualification as set forth on Schedule V;
8
(iv) all the
issued and outstanding equity interests of each of the Delaware/Texas/New York
Subsidiaries have been duly authorized and validly issued and are fully paid and
nonassessable (except to the extent that such nonassessability may be affected
by Section 153.112 of the Texas Business Organizations Code or Section 18-607 of
the Delaware Limited Liability Company Act) and are owned of record by the
Company or by one of the Company’s wholly owned subsidiaries; and, except as set
forth in the Disclosure Package and the Prospectus, the Company or such wholly
owned subsidiary owns such equity interests free and clear of all Liens (A) in
respect of which a financing statement under the Delaware Uniform Commercial
Code or the Texas Uniform Commercial Code, as applicable, naming the owner of
the equity interests of such subsidiary as debtor is on file as of a recent date
in the office of the Secretary of State of the State of Delaware or the
Secretary of State of the State of Texas, as applicable, or (B) otherwise known
to such counsel after due inquiry;
(v) the
Company’s authorized equity capitalization is as set forth in the Disclosure
Package and the Prospectus; the capital stock of the Company consists of
150,000,000 shares of Common Stock and 15,000,000 shares of preferred stock, par
value $0.001 per share (the “Preferred Stock”), and such capital stock conforms
as to legal matters to the description thereof contained in the Disclosure
Package and the Prospectus under the heading “Description of Capital Stock;” the
outstanding shares of Common Stock have been duly and validly authorized and
issued and are fully paid and nonassessable, immediately after giving effect to
the consummation of the issuance and sale of the Securities pursuant to this
Agreement and no shares of Preferred Stock will be issued and outstanding; the
Securities being sold hereunder by the Company have been duly and validly
authorized, and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the Securities
being sold by the Company are duly listed, and admitted and authorized for
trading, on the Nasdaq Global Market, subject to official notice of issuance;
the certificates for the Securities are in valid and sufficient form; the
holders of outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights to subscribe for the Securities; and, except as
set forth in the Disclosure Package and the Prospectus, to such counsel’s
knowledge, no options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests in the Company
are outstanding;
(vi) to the
knowledge of such counsel, there is no pending or threatened action,
suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries or its
or their property of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Preliminary Prospectus and
the Prospectus, and there are no documents that are required to be filed as
exhibits to the Registration Statement that are not so filed or any documents
that are required to be summarized in the Preliminary Prospectus or the
Prospectus that are not so summarized; and the statements included in the
Registration Statement, the Preliminary Prospectus and the Prospectus under the
heading “Description of Capital Stock,” the statements under the heading “Item
13. Certain Relationships and Related Transactions and Director Independence” in
the Company’s Annual Report on Form 10-K, which is incorporated by reference
into the Registration Statement, the Preliminary Prospectus and the Prospectus,
and the statements contained in the description of the Company’s common stock
incorporated into the Registration Statement, the Preliminary Prospectus and the
Prospectus by reference to the Company’s registration statement on Form 8-A, as
amended (File No. 001−33399), and Item 15 in the Registration Statement insofar
as such statements summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings;
(vii) this
Agreement has been duly authorized, executed and delivered by the
Company;
(viii) the
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Disclosure Package and the Prospectus, will not be, an “investment company” as
defined in the Investment Company Act of 1940, as amended;
(ix) no
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in the
manner contemplated in this Agreement and in the Preliminary Prospectus and the
Prospectus and such other approvals (specified in such opinion) as have been
obtained;
(x) neither
the issue and sale of the Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or imposition of any Lien
upon any property or assets of the Company or its subsidiaries pursuant to,
(i) the charter or bylaws of the Company or its subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or its subsidiaries is a party or bound or to
which its or their property is subject listed in Schedule A to such opinion, or
(iii) applicable laws of the United States of America, the State of New
York, the State of Texas or the General Corporation Law of the State of Delaware
or any statute, rule, regulation, judgment, order or decree applicable to the
Company or its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or its subsidiaries or any of its or their properties;
and
9
(xi) except as
set forth in the Registration Rights Agreement, no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such
counsel may (A) rely, to the extent such counsel deems proper, in respect of
matters of fact upon representations of the Company set forth in this Agreement
and certificates of officers and employees of the Company and upon information
obtained from public officials, (B) assume that all documents submitted to them
as originals are authentic, that all copies submitted to them conform to the
originals thereof, and that the signatures on all documents examined by them are
genuine, (C) state that their opinion is limited to federal laws, the laws of
the State of Texas, the General Corporation Law of the State of Delaware, the
Delaware Limited Liability Company Act and the laws of the State of New York,
(D) with respect to the opinions expressed in subparagraphs (ii) and (iii) above
as to the due qualification or registration as a foreign corporation or limited
liability company, as the case may be, state that such opinions are based upon
certificates of foreign qualification or registration provided by the Secretary
of State of the States listed on Schedule B to such opinion (each of which shall
be dated as of a date not more than five days prior to the Closing Date and
shall be provided to you), and (E) state that they express no opinion with
respect to (i) any permits to own or operate any real or personal property or
(ii) state or local taxes or tax statutes to which any of the stockholders of
the Company may be subject. Such counsel may also include a statement
in such opinion that such counsel did not independently verify, is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the
Prospectus and the Disclosure Package, as amended or supplemented at the
Execution Time (except to the extent stated in subparagraph (vi) above).
References to the Prospectus in this paragraph (b) shall also include
any supplements thereto at the Closing Date.
(c) The
Representatives shall have received from ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Registration Statement, the Disclosure Package,
the Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) The
Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board or the President and the principal
financial or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Disclosure Package, the Prospectus and any amendment
or supplement thereto, as well as each electronic road show used in connection
with the offering of the Securities, and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop
order suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued and no proceedings for that purpose have
been instituted or, to the Company’s knowledge, threatened;
(iii) all
filings required to have been made pursuant to Rules 424 or 430A under the Act
have been made;
(iv) they have
examined the Registration Statement and the Prospectus and, in their opinion, as
of the Effective Date of the Registration Statement, the statements contained in
the Registration Statement were true and correct, and such Registration
Statement and Prospectus did not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and since the effective date of the Registration Statement, no event
has occurred which should have been set forth in a supplement or an amendment of
the Prospectus which has not been so set forth in such supplement or amendment;
and
10
(v) since the
date of the most recent financial statements included in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto), there has been no
material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and
the Prospectus (exclusive of any supplement thereto).
(e) The
Company shall have requested and caused PricewaterhouseCoopers LLP to have
furnished to the Representatives at the Execution Time and at the Closing Date,
letters, dated respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange Act
and that they have performed a review of the unaudited interim financial
information of the Company for the three- and nine-month periods ended September
30, 2009 and as at September 30, 2009 in accordance with Statement on Auditing
Standards No. 100 and stating in effect that:
(i) in their
opinion the audited financial statements and financial statement schedules
incorporated by reference into the Registration Statement, the Preliminary
Prospectus and the Prospectus and reported on by them comply as to form with the
applicable accounting requirements of the Act and the Exchange Act;
(ii) on the
basis of a reading of the latest unaudited financial statements made available
by the Company and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards No. 100, of the
unaudited interim financial information for the three- and nine-month periods
ended September 30, 2009 and as at September 30, 2009 incorporated by reference
into the Registration Statement, the Preliminary Prospectus and the Prospectus;
carrying out certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and audit
committee and the compensation committee of the Company and the subsidiaries;
and inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to December 31, 2008, nothing came to their
attention which caused them to believe that:
(1) any
unaudited financial statements included in or incorporated by reference into the
Registration Statement, the Preliminary Prospectus and the Prospectus do not
comply as to form with applicable accounting requirements of the Act and with
the related rules and regulations adopted by the Commission with respect to
financial statements included in quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included or
incorporated by reference into the Registration Statement, the Preliminary
Prospectus and the Prospectus;
(2) with
respect to the period subsequent to September 30, 2009, there were any changes,
at a specified date not more than five days prior to the date of the letter, in
the long-term liabilities of the Company and its subsidiaries or capital stock
of the Company as compared with the amounts shown on the September 30, 2009
condensed consolidated balance sheet included or incorporated by reference into
the Registration Statement, the Preliminary Prospectus, and the Prospectus,
except in all instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by the Company as
to the significance thereof unless said explanation is not deemed necessary by
the Representatives;
(3) the
information included or incorporated by reference into the Registration
Statement, the Preliminary Prospectus and the Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive Compensation) and Item 503(d)
(Ratio of Earnings to Fixed Charges) is not in conformity with the applicable
disclosure requirements of Regulation S-K; and
11
(iii) they have
performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical information
derived from the general accounting records of the Company and its subsidiaries)
set forth in the Registration Statement, the Preliminary Prospectus and the
Prospectus, including the information set forth under the captions “Summary
Historical Financial Data” and “Capitalization” in the Preliminary Prospectus
and the Prospectus and the information in Items 1, 1A, 5, 6, 7 and 7A of the
Company’s Annual Report on Form 10K, (B) the information included in Item 2 of
Part I and Items 1A and 2 of Part II of the Company’s Quarterly Reports on Form
10-Q and (C) the information in the Company’s proxy statement for the 2009
annual meeting of stockholders incorporated by reference into the Company’s
Annual Report on Form 10-K, incorporated by reference into the Registration
Statement, the Preliminary Prospectus and Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of legal
interpretation.
References
to the Prospectus in this paragraph (e) include any supplement thereto at the
date of the letter.
(f) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given
in the Registration Statement (exclusive of any amendment thereof)
and the Prospectus (exclusive of any supplement thereto), there shall not have
been (i) any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries taken as a whole whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any amendment or supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Disclosure Package and the Prospectus
(exclusive of any amendment or supplement thereto).
(g) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of
any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such rating or of
a possible change in any such rating that does not indicate the direction of the
possible change.
(h) Prior to
the Closing Date, the Company shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request for the purposes of enabling them to pass upon the issuance
and sale of the Securities as contemplated herein, or in order to evidence the
accuracy of any of the representations and warranties or the satisfaction of any
of the conditions or agreements herein contained.
(i) The
Securities shall have been listed and admitted and authorized for trading on the
Nasdaq Global Market, and satisfactory evidence of such actions shall have been
provided to the Representatives.
(j) At the
Execution Time, the Company shall have furnished to the Representatives a letter
substantially in the form of Exhibit A hereto from each officer and
director of the Company and the persons named in Schedule IV hereto addressed to
the Representatives.
(k) The
Representatives shall have received at or prior to the Closing Date from the Law
Offices of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ a memorandum or summary, in form and substance
satisfactory to the Representatives, with respect to the qualification for
offering and sale by the Underwriters of the Securities under the State
securities or blue sky laws of such jurisdictions as the Representatives may
reasonably have designated to the Company.
12
(l) The
Underwriters shall have received clearance from FINRA as to the amount of
compensation allowable or payable to the Underwriters as described in the
Prospectus.
If any of the
conditions specified in this Section 6 shall not have been fulfilled when
and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in
writing. In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 7
and 8 hereof).
The documents
required to be delivered by this Section 6 shall be delivered at the office
of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the
Closing Date.
7. Reimbursement of
Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
RBC Capital Markets Corporation on demand for all expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and
Contribution
(a) The Company
(i) agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (A) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in the Base Prospectus, any Preliminary Prospectus, or any other
preliminary prospectus supplement relating to the Securities, the Prospectus, or
any Issuer Free Writing Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (B) any untrue statement or alleged
untrue statement of a material fact contained in the Base Prospectus, any
Preliminary Prospectus, or any other preliminary prospectus supplement relating
to the Securities, the Prospectus or any Issuer Free Writing Prospectus, or in
any amendment thereof or supplement thereto, or the omission or alleged omission
to state therein of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (ii) agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, each person who controls the Company within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in (i) the last paragraph of
the cover page regarding delivery of the Securities, (ii) the list of
Underwriters and their respective participation in the sale of the Securities
under the heading “Underwriting,” (iii) the sentences related to
concessions and reallowances under the heading “Underwriting,” (iv) the
paragraphs related to stabilization, syndicate covering transactions and penalty
bids under the heading “Underwriting” and (v) the sentence related to the
referral of the transaction from Lazard Frères & Co. LLC to Lazard Capital
Markets LLC under the heading “Underwriting” in the Prospectus constitute the
only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the Registration Statement, the Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
13
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(x) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (y) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) In the
event that the indemnity provided in paragraph (a), (b), or (c) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters (severally)
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending the same) (collectively “Losses”) to which the
Company and one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in the Master Agreement
Among Underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters (severally) shall contribute in such
proportion as is appropriate to reflect not only such relative benefits 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 as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), 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. For purposes
of this Section 8, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d). The
Underwriters’ obligations in this paragraph (d) are several in proportion to
their respective underwriting obligations and not joint.
9. Default by an
Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, you, as the Representatives of the Underwriters, shall use your
reasonable efforts to procure within 36 hours thereafter one or more of the
other Underwriters, or any others, to purchase from the Company such amounts as
may be agreed upon and upon the terms set forth herein, the Securities which the
defaulting Underwriter or Underwriters failed to purchase. If during
the 36 hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Securities agreed to be purchased
by the defaulting Underwriter or Underwriters, then the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their names in
Schedule I hereto bears to the aggregate amount of Securities set forth
opposite the names of all of the remaining Underwriters) the Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all of the Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
14
10. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment (i)
trading in the Company’s Common Stock shall have been suspended by the
Commission or the Nasdaq Global Market or trading in securities generally on the
New York Stock Exchange shall have been suspended or limited or minimum prices
shall have been established on either of such exchanges, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis, the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Preliminary Prospectus or the Prospectus (exclusive of any
amendment or supplement thereto).
11. Representations and
Indemnities to Survive. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of
this Agreement.
12. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Underwriters, will be mailed, delivered or telefaxed to (▇▇▇)
▇▇▇-▇▇▇▇ and confirmed to RBC Capital Markets Corporation, 3 World Financial
Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇, Syndicate
Director; or, if sent to the Company, will be mailed, delivered or telefaxed to
(▇▇▇) ▇▇▇-▇▇▇▇ and
confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of the Legal Department.
13. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. No Fiduciary Duty; Research
Independence.
(i) The
Company hereby acknowledges that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principal and
not as an agent or fiduciary of the Company and (c) the Company’s engagement of
the Underwriters in connection with the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible
for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company
on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the Company in
connection with such transaction or the process leading thereto.
(ii) In
addition, the Company acknowledges that the Underwriters’ research analysts and
research departments are required to be independent from their respective
investment banking divisions and are subject to certain regulations and internal
policies, and that such Underwriters’ research analysts may hold and make
statements or investment recommendations and/or publish research reports with
respect to the Company and/or the offering that differ from the views of its
investment bankers. 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 conflict of interest that may arise from
the fact that the views expressed by their independent research analysts and
research departments may be different from or inconsistent with the views or
advice communicated to the Company by such Underwriters’ investment banking
divisions. The Company acknowledges that each of the Underwriters is
a full service securities firm and as such from time to time, subject to
applicable securities laws, may effect transactions for its own account or the
account of its customers and hold long or short position in debt or equity
securities of the companies which may be the subject to the transactions
contemplated by this Agreement
15. Integration. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15
17. Waiver of Jury Trial.
The Company hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
18. Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
19. Headings. The
section headings used herein are for convenience only and shall not affect the
construction hereof.
20. Definitions. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Act” shall mean the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Base Prospectus”
shall mean the base prospectus referred to in paragraph 1(a) above contained in
the Registration Statement at the Execution Time.
“Business Day” shall
mean any day other than a Saturday, a Sunday or a legal holiday or a day on
which banking institutions or trust companies are authorized or obligated by law
to close in New York City.
“Commission” shall
mean the Securities and Exchange Commission.
“Disclosure Package”
shall mean (i) the Base Prospectus, (ii) the Statutory Prospectus, (iii) the
Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto, and
(iv) any other Free Writing Prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package.
“Effective Date”
shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Execution Time”
shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
“Free Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer Free Writing
Prospectus” shall mean an issuer free writing prospectus, as defined in Rule
433.
“Liens” shall mean
any lien, encumbrance, security interest, charge or other claim.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus which is used prior to the filing of the Prospectus, together with
the Base Prospectus.
“Prospectus” shall
mean the prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
“Registration
Statement” shall mean the registration statement referred to in paragraph
1(i)(a) above, including exhibits and financial statements, and any base
prospectus and any prospectus supplement relating to the Securities that is
filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430A, as amended at the Execution Time
and, in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be.
16
“Rule 158”, “Rule
164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430A” and
“Rule 433” refer to such rules under the Act.
“Rule 462(b)
Registration Statement” shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the offering covered by
the registration statement referred to in Section 1(i)(a)
hereof.
“Statutory
Prospectus” shall mean the Preliminary Prospectus relating to the Securities
that is included in the Registration Statement relating to the Securities
immediately prior to the Execution Time, including any document that is
incorporated by reference therein.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company and the several
Underwriters.
|
Very
truly yours,
|
|
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
Title: Interim
President and Chief Executive Officer;
Executive Vice
President and Chief Financial Officer
|
18
|
The
foregoing Agreement is hereby
confirmed
and accepted as of the date
first
above written.
|
|
RBC
CAPITAL MARKETS CORPORATION
LAZARD
CAPITAL MARKETS LLC
▇▇▇▇▇▇
▇. ▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇▇
INC.
|
|
As
the Representatives of the several Underwriters listed on Schedule I
hereto.
|
|
By: RBC
Capital Markets Corporation
|
|
By: /s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
Name:
▇▇▇▇ ▇▇▇▇▇▇
|
|
Title:
Managing Director
|
For
themselves and the several other Underwriters
listed on
Schedule I hereto.
[Signature
Page to Underwriting Agreement]
19
SCHEDULE I
|
Underwriters
|
Number of Underwritten Securities to be
Purchased
|
|||
|
RBC
Capital Markets Corporation
|
1,080,000 | |||
|
Lazard
Capital Markets LLC
|
840,000 | |||
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇ & Co. Incorporated
|
240,000 | |||
|
▇▇▇▇▇▇▇▇
Inc.
|
240,000 | |||
|
Total
|
2,400,000 | |||
20
SCHEDULE II
Offering
Information
An
exception contained in the lock-up agreement with the Company’s former CEO,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, permits him to sell, in connection with his retirement, for
tax and estate planning purposes, up to 25,000 shares in any calendar week
following the expiration of the first 30 days of the lock-up period at a price
no less than $12.50 per share, and up to 25,000 shares in any calendar week
following the expiration of the first 60 days of the lock-up period at a price
no less than $12.75 per share.
21
SCHEDULE III
Schedule of Free Writing
Prospectuses included in the Disclosure Package
None
22
SCHEDULE
IV
List of Persons and Entities
Subject to Lock-up Agreements
A.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇, ▇▇
ECP II
Interfund L.P.
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
EnerTech
Capital Holding Company, LP
EnerTech
Capital Partners II, LP
EnerTech
Capital Partners LP
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇’▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
R. ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
23
SCHEDULE V
Foreign Qualification
List
|
Entity
|
Incorporation/
Formation
State
|
Foreign
Qualifications
|
|
Delaware
|
AZ,
CA, CT, FL, GA, NC, NJ, NV, PA, TX, UT and WA
|
|
|
Alternative
Energy Resources, Inc.
|
Delaware
|
AZ,
CA, CT, IL, MD, NJ, NM, NV, TX and UT
|
|
Clean
Power Markets, Inc.
|
Pennsylvania
|
CA,
NJ and PA
|
|
Comverge
Energy Management, Inc.
|
Texas
|
N/A
|
|
Comverge
Energy Partners, Ltd.
|
Texas
|
N/A
|
|
Comverge
Giants, LLC
|
Delaware
|
N/A
|
|
Comverge
Utah, Inc.
|
Utah
|
N/A
|
|
Enerwise
Global Technologies, Inc.
|
Delaware
|
MD,
NC, PA and WV
|
|
PES
NY, LLC
|
New
York
|
N/A
|
|
Public
Electric, Inc.
|
New
Jersey
|
NY
|
|
Public
Energy Solutions, LLC
|
New
Jersey
|
NY
|
|
Public
Energy Solutions NY, LLC
|
Delaware
|
NY
|
|
Delaware
|
N/A
|
24
EXHIBIT A
[Form of
Lock-Up Agreement]
[Letterhead
of officer, director or major shareholder of
Corporation]
Public
Offering of Common Stock
[________ ___],
2009
RBC
Capital Markets Corporation
Lazard
Capital Markets LLC
▇▇▇▇▇▇ ▇.
▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇▇
Inc.
As
Representatives of the several Underwriters,
c/o RBC
Capital Markets
3 World
Financial Center
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies
and Gentlemen:
This
letter is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”), among Comverge, Inc., a Delaware
corporation (the “Company”), and each of you as representatives of a group of
Underwriters named therein, relating to an underwritten public offering (the
“Offering”) of Common Stock, par value $0.001 per share (the “Common Stock”), of
the Company.
In order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, the undersigned will not, without the prior written consent of RBC
Capital Markets Corporation and Lazard Capital Markets LLC, offer, sell,
contract to sell, pledge or otherwise dispose of (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due
to cash settlement or otherwise, other than the exercise of any stock option
granted as a direct or indirect result of any Company program, including but not
limited to, any form of “cashless” exercise generally available for such grants,
provided that the net resulting shares from such exercise shall be subject to
this agreement, and for any sale or transfer to the Company as payment for tax
liability or withholding for vested restricted stock) by the undersigned or any
affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the Securities
and Exchange Commission (other than a registration statement relating to
employee benefit plans of the Company) in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to, any shares of capital stock of the
Company or any securities convertible into, or exercisable or exchangeable for,
such capital stock (collectively, the “Lock-up Securities”), or publicly
announce an intention to effect any such transaction, for a period of 90 days
after the date of the Underwriting Agreement, other than shares of Common Stock
(1) transferred to the Underwriters pursuant to the Offering and the
Underwriting Agreement or (2) disposed of as bona fide gifts approved by RBC
Capital Markets Corporation and Lazard Capital Markets LLC.
If (i)
the Company issues an earnings release or material news, or a material event
relating to the Company occurs, during the last 17 days of the lock-up period,
or (ii) prior to the expiration of the lock-up period, the Company announces
that it will release earnings results during the 16-day period beginning on the
last day of the lock-up period, the restrictions imposed by this agreement shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event, unless RBC Capital Markets Corporation and Lazard Capital
Markets LLC waive, in writing, such extension. The undersigned hereby
acknowledges that the Company has agreed in the Underwriting Agreement to
provide written notice to the undersigned of any event that would result in an
extension of the lock-up period and agrees that any such notice properly
delivered will be deemed to have given to, and received by, the
undersigned.
Notwithstanding
anything contained herein to the contrary, to the extent that (i) at any time
subsequent to the execution of this agreement the undersigned is not required to
make any filings under Section 16 or Sections 13(d) or (g) of the Securities
Exchange Act of 1934 with respect to any shares of Common Stock, and (ii) the
undersigned has entered into or will enter into an agreement similar to this
agreement (a) in connection with a bona fide issuer directed
share program relating to the underwritten public offering of Common Stock (a
“DSP Program”) with respect to any shares of Common Stock to be purchased in
such DSP Program (the “DSP Shares”) and (b) with any member of the underwriting
syndicate or any affiliate of such member who is acting as administrator of such
DSP Program, the terms of such other similar lock-up agreement and not of this
agreement shall govern the undersigned’s rights with respect to such DSP
Shares.
Notwithstanding
anything to the contrary herein, the foregoing restrictions shall not apply to
any transactions effected pursuant to a trading plan entered into by the
undersigned pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934
prior to the date hereof. Additionally, nothing herein shall prevent
the undersigned from entering into one or more 10b5-1 trading plans or amending
one or more existing 10b5-1 trading plans as long as there are no sales of any
shares of Common Stock under such plans during the lock-up period.
If for
any reason the Company notifies you that it does not intend to proceed with the
Offering, the Underwriting Agreement does not become effective or the
Underwriting Agreement shall be terminated prior to the Closing Date (as defined
in the Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
|
|
Yours
very truly,
|
|
|
[Signature
of officer, director or major
stockholder]
|
[Name and
address of officer, director or major stockholder]
25