Seneca Foods Corporation Class A Common Stock UNDERWRITING AGREEMENT dated July 15, 2009
Exhibit 1
EXECUTION
VERSION
Seneca
Foods Corporation
Class A
Common Stock
dated
July 15, 2009
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
July 15,
2009
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇
▇▇▇▇▇▇▇ & CO.
c/o
Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
As
Representatives of the several Underwriters
Ladies
and Gentlemen:
Introductory. The
shareholders of Seneca Foods Corporation, a New York corporation (the “Company”), named in
Schedule B (collectively, the “Selling
Shareholders”) severally propose to sell to the underwriters named in
Schedule A (the “Underwriters”) an
aggregate of 3,266,376 shares (the “Firm Shares”) of
Class A Common Stock, par value $0.25 per share (the “Common Stock”), of
the Company. In addition, the Selling Shareholders have severally
granted to the Underwriters an option to purchase up to an additional 489,956
shares (the “Optional
Shares”) of Common Stock, as provided in Section 2, with each Selling
Shareholder selling up to the amount set forth opposite such Selling
Shareholder’s name in Schedule B. The Firm Shares and, if and to the
extent such option is exercised, the Optional Shares are collectively called the
“Shares”. ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (“ML”) and ▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. have agreed to act as representatives of the several
Underwriters (in such capacity, the “Representatives”) in
connection with the offering and sale of the Shares.The Company and each of the
Selling Shareholders hereby confirm their respective agreements with the
Underwriters as follows:
Section
1. Representations
and Warranties of the
Company.
A. The
Company hereby represents and warrants to, and covenants with, each Underwriter
as follows:
(a) Registration
Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-160358), which contains a base
prospectus (the “Base
Prospectus”), to be used in connection with the public offering and sale
of the Shares. Such registration statement, as amended, including the
financial statements, exhibits and schedules thereto, at each time of
effectiveness under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the “Securities Act”),
including any required information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act or the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Exchange Act”), is
called the “Registration
Statement.” Any registration statement filed by the Company
pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration
Statement,” and from and after the date and time of filing of the Rule
462(b) Registration Statement the term “Registration Statement” shall include
the Rule 462(b) Registration Statement. Any preliminary prospectus
supplement to the Base Prospectus that describes the Shares and the offering
thereof and is used prior to filing of the final prospectus supplement is
called, together with the Base Prospectus, a “preliminary
prospectus.” The term “Prospectus” shall
mean the final prospectus supplement relating to the Shares that is first filed
pursuant to Rule 424(b) under the Securities Act after the date and time that
this Agreement is executed and delivered by the parties hereto (the “Execution
Time”). Any reference herein to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act; any reference to any amendment or supplement
to any preliminary prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such preliminary prospectus or
Prospectus, as the case may be, under the Exchange Act, and incorporated by
reference in such preliminary prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement.
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(b) Compliance with Registration and
Exchange Act Requirements. The Registration
Statement has been declared effective by the Commission under the Securities
Act. The Company has complied to the Commission’s satisfaction with
all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the
Registration Statement is in effect, the Commission has not issued any order or
notice preventing or suspending the use of the Registration Statement, any
preliminary prospectus or the Prospectus and no proceedings for such purpose
have been instituted or are pending or, to the best knowledge of the Company,
are contemplated or threatened by the Commission.
Each
preliminary prospectus and the Prospectus when filed complied in all material
respects with the Securities Act. Each of the Registration Statement
and any post-effective amendment thereto, at each time of effectiveness and at
the date hereof, complied and will comply in all material respects with the
Securities Act and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading. The
Prospectus, as amended or supplemented, as of its date, at the date hereof, at
the time of any filing pursuant to Rule 424(b) under the Securities Act, at the
Closing Date (as defined herein) and at any Subsequent Closing Date (as defined
herein), did not and will not contain 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. The representations and warranties set forth in the two
immediately preceding sentences do not apply to statements in or omissions from
the Registration Statement or any post-effective amendment thereto, or the
Prospectus, or any amendments or supplements thereto, based upon and in
conformity with written information furnished to the Company by any Underwriter
through ML expressly for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information
described as such in Section 8 hereof. There is no contract or other
document required to be described in the Prospectus or to be filed as an exhibit
to the Registration Statement that has not been described or filed as
required.
The documents incorporated by reference
in the Prospectus, when they became effective or were filed with the Commission,
as the case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable. Any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(c) Disclosure
Package. The term “Disclosure Package”
shall mean (i) the Base Prospectus, as amended or supplemented, including any
preliminary prospectus supplement, (ii) the issuer free writing prospectuses as
defined in Rule 433 under the Securities Act (each, an “Issuer Free Writing
Prospectus”), if any, identified in Schedule C hereto, (iii) any other
free writing prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package and (iv) Schedule D
hereto, which indicates the number of Shares being sold and the price at which
the Shares will be sold to the public. As of 6:00 p.m. (New York
time) on the date of execution and delivery of this Agreement (the “Applicable Time”),
the Disclosure Package did 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 ML and by any
Selling Shareholder expressly for use therein, it being understood and agreed
that the only such information furnished by any Underwriter and any Selling
Shareholder consists of the information described as such in Section 8
hereof.
(d) Company Not Ineligible
Issuer. (i) At the earliest time after the filing of the
Registration Statement relating to the Shares that the Company or another
offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2)) of the Securities Act and (ii) as of the date of the
execution and delivery of this Agreement (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 under the Securities Act),
without taking account of any determination by the Commission pursuant to Rule
405 under the Securities Act that it is not necessary that the Company be
considered an Ineligible Issuer.
(e) Issuer Free Writing
Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the offering of
Shares under this Agreement or until any earlier date that the Company notified
or notifies ML as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, including any prospectus
or prospectus supplement that is or becomes part of the Registration
Statement. If at any
time following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the
Registration Statement, the Company has promptly notified or will promptly
notify ML and has promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict. The foregoing two sentences do 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 ML and by any Selling Shareholder expressly for use therein,
it being understood and agreed that the only such information furnished by any
Underwriter and Selling Shareholder consists of the information described as
such in Section 8 hereof.
(f) Accuracy of Statements in
Prospectus. The statements in the Disclosure Package and the
Prospectus under the headings “Material U.S. Federal Tax Considerations for
Non-United States Holders of Class A Common Stock”, “Business – Intellectual
Property”, “Business – Environmental Protection” and “Legal Proceedings”,
insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings.
(g) Distribution of Offering Material By
the Company. The Company has
not distributed and will not distribute, prior to the later of the last
Subsequent Closing Date (as defined below) and the completion of the
Underwriters’ distribution of the Shares, any offering material in connection
with the offering and sale of the Shares other than a preliminary prospectus,
the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by
ML or included in Schedule C hereto or the Registration Statement.
(h) The Underwriting
Agreement. This Agreement
has been duly authorized, executed and delivered by the Company.
(i) No Transfer
Taxes. There are no transfer taxes or other similar fees or
charges under federal law, the laws of any state, or any political subdivision
thereof, or any other U.S. or non-U.S. governmental authority required to be
paid in connection with the execution and delivery of this
Agreement.
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(j) No Applicable Registration or Other
Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, except for such rights as have been
duly waived.
(k) No Material Adverse
Change. Except as
otherwise disclosed in the Disclosure Package and the Prospectus, subsequent to
the respective dates as of which information is given in the Disclosure Package:
(i) there has been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in the condition,
financial or otherwise, or in the earnings, business, properties, operations or
prospects, whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries, considered as one entity (any
such change is called a “Material Adverse
Change”); (ii) the Company and its subsidiaries, considered as one
entity, have not incurred any material liability or obligation, indirect, direct
or contingent, nor entered into any material transaction or agreement; and (iii)
there has been no dividend or distribution of any kind declared, paid or made by
the Company or, except for dividends paid to the Company or other subsidiaries,
any of its subsidiaries on any class of capital stock or repurchase or
redemption by the Company or any of its subsidiaries of any class of capital
stock.
(l)
Independent
Accountants. BDO ▇▇▇▇▇▇▇,
LLP, who have expressed their opinion with respect to the financial statements
(which term as used in this Agreement includes the related notes thereto) and
supporting schedules filed with the Commission as a part of or incorporated by
reference in the Registration Statement and included or incorporated by
reference in the Disclosure Package and the Prospectus, are independent
registered public accountants with respect to the Company as required by the
Securities Act and the Exchange Act.
(m)
Preparation of the Financial
Statements. The financial
statements filed with the Commission as a part of or incorporated by reference
in the Registration Statement and included or incorporated by reference in the
Disclosure Package and the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as of and at the dates indicated
and the results of their operations and cash flows for the periods
specified. The supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information required
to be stated therein. Such financial statements and supporting schedules comply
as to form with the applicable accounting requirements of the Securities Act and
have been prepared in conformity with generally accepted accounting principles
(“GAAP”)
applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. No other financial
statements or supporting schedules are required to be included or incorporated
by reference in the Registration Statement. The financial data set
forth in the preliminary prospectus and the Prospectus under the captions
“Prospectus Supplement Summary—Summary Consolidated Financial Information,”
“Summary of Operations and Financial Condition” and “Capitalization” fairly
present the information set forth therein on a basis consistent with that of the
audited financial statements contained in the Disclosure Package and the
Prospectus.
(n)
Incorporation and Good
Standing of the Company and its Subsidiaries. Each of the
Company and its Subsidiaries has been duly incorporated or formed, as the case
may be, and is validly existing as a corporation, or limited liability company,
as the case may be, in good standing under the laws of the jurisdiction of its
incorporation or formation and has corporate or limited liability company, as
the case may be, power and authority to own or lease, as the case may be, and
operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus and, in the case of the Company, to enter
into and perform its obligations under this Agreement. The Company
and each of its Subsidiaries is duly qualified as a foreign corporation or
limited liability company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would
not, individually or in the aggregate, result in a material adverse effect on
the condition, financial or otherwise, or on the earnings, business, properties,
operations or prospects, whether or not arising from transactions in the
ordinary course of business, of the Company and its subsidiaries, considered as
one entity (a “Material Adverse
Effect”). All of the issued and outstanding capital stock or
other ownership interests of each subsidiary have been duly authorized and
validly issued, are fully paid and nonassessable and, except as disclosed in the
Disclosure Package and the Prospectus, are owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance or claim. The Company does not own or control,
directly or indirectly, any corporation, association, or other entity other than
the subsidiaries listed in Exhibit 21 to the Company’s Annual Report on Form
10-K for the fiscal year ended March 31, 2009.
(o)
Capitalization and Other
Capital Stock Matters. The authorized,
issued and outstanding capital stock of the Company is as set forth in the
Disclosure Package and the Prospectus under the caption “Capitalization” (other
than for subsequent issuances, if any, pursuant to employee benefit plans
described in the Disclosure Package and the Prospectus or upon exercise of
outstanding options described in the Disclosure Package and the Prospectus, as
the case may be). The Common Stock (including the Shares) conforms in
all material respects to the description thereof contained in the Disclosure
Package and the Prospectus. All of the issued and outstanding shares
of Common Stock (including the shares of Common Stock owned by the Selling
Shareholders) have been duly authorized and validly issued, are fully paid and
nonassessable and have been issued in compliance with federal and state
securities laws. None of the outstanding shares of Common Stock were
issued in violation of any preemptive rights, rights of first refusal or other
similar rights to subscribe for or purchase securities of the
Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or exercisable for,
any capital stock of the Company or any of its subsidiaries other than those
accurately described in the Disclosure Package and the
Prospectus. The description of the Company’s stock plans or
arrangements, and the rights granted thereunder, set forth or incorporated by
reference in the Disclosure Package and the Prospectus accurately and fairly
presents the information required to be shown with respect to such plans,
arrangements and rights.
(p) Listing. The Shares have
been approved for listing on the Nasdaq Stock Market, Inc. subject only to
official notice of issuance.
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(q)
Non-Contravention of Existing
Instruments; No Further Authorizations or Approvals Required. Neither the
Company nor any of its subsidiaries is (i) in violation or in default (or, with
the giving of notice or lapse of time, would be in default) (“Default”) under its
charter or by-laws, (ii) in Default under any indenture, mortgage, loan or
credit agreement, deed of trust, note, contract, franchise, lease or other
agreement, obligation, condition, covenant or instrument to which the Company or
such subsidiary is a party or by which it may be bound (including, without
limitation, the Company’s Amended and Restated Revolving Credit Agreement, dated
as of August 18, 2006, by and among the Company, Signature Fruit Company, LLC
(now known as Seneca Foods, LLC) and Seneca Snack Company, as borrowers, Bank of
America, N.A., as administrative agent, collateral agent and issuing bank,
General Electric Capital Corporation, as syndication agent, Cooperative Centrale
Raiffeisen-Boerenleenbank B.A., New York Branch, as documentation agent, and the
lenders listed on Schedule I thereto, as amended by a First Amendment Agreement,
dated as of November 30, 2006, and a Second Amendment Agreement, dated as of
April 28, 2008, and the Company’s 8% Secured Nonrecourse Subordinated Promissory
Note issued by the Company to The Pillsbury Company dated February 1, 1995), or
to which any of the property or assets of the Company or any of its subsidiaries
is subject (each, an “Existing Instrument”)
or (iii) in violation of any statute, law, rule, regulation, judgment, order or
decree of any court applicable to the Company or any of its subsidiaries,
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 clause (ii) only, for such
Defaults as would not, individually or in the aggregate, have a Material Adverse
Effect. The Company’s execution, delivery and performance of this
Agreement and consummation of the transactions contemplated hereby, by the
Disclosure Package and by the Prospectus (i) have been duly authorized by all
necessary corporate action and will not result in any Default under the charter
or by-laws of the Company or any subsidiary, (ii) will not conflict with or
constitute a breach of, or Default or a Debt Repayment Triggering Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument, and (iii) will not result in any violation of 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. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency is required for the Company’s execution, delivery and
performance of this Agreement and consummation of the transactions contemplated
hereby, by the Disclosure Package and by the Prospectus, except such as have
been obtained or made by the Company and are in full force and effect under the
Securities Act, applicable state securities or blue sky laws and from the
Financial Industry Regulatory Authority (“FINRA”). As
used herein, a “Debt
Repayment Triggering Event” means any event or condition which gives, or
with the giving of notice or lapse of time would give, the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(r)
No Material Actions or
Proceedings. Except as
otherwise disclosed in the Disclosure Package and the Prospectus, there are no
legal or governmental actions, suits or proceedings pending or, to the best of
the Company’s knowledge, threatened against or affecting the Company or any of
its subsidiaries, (i) which has as the subject thereof any officer or director
of, or property owned or leased by, the Company or any of its subsidiaries or
(ii) relating to environmental or discrimination matters, where in either such
case, (A) there is a reasonable possibility that such action, suit or proceeding
might be determined adversely to the Company or such subsidiary, or any officer
or director of, or property owned or leased by, the Company or any of its
subsidiaries and (B) any such action, suit or proceeding, if so determined
adversely, would reasonably be expected to have a Material Adverse Effect or
adversely affect the consummation of the transactions contemplated by this
Agreement.
(s)
Labor
Matters. No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or, to the best knowledge of the
Company after due inquiry, is threatened or imminent, and the Company is not
aware of any existing, or, to the best knowledge of the Company after due
inquiry, threatened or imminent labor disturbance by the employees of any of its
or its subsidiaries’ principal suppliers, contractors or customers, that could
have a Material Adverse Effect.
(t) Intellectual Property
Rights. The Company and
its subsidiaries own, possess, license or have other rights to use, on
reasonable terms, all patents, patent applications, trade and service marks,
trade and service ▇▇▇▇ 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 Disclosure Package and the Prospectus to be
conducted. Except as set forth in the Disclosure Package and the
Prospectus, (a) no party has been granted an exclusive license to use any
portion of such Intellectual Property owned by the Company; (b) to the Company’s
best knowledge, there is no material infringement by third parties of any such
Intellectual Property owned by or exclusively licensed to the Company; (c) there
is no pending or, to the Company’s best knowledge, threatened action, suit,
proceeding or claim by others challenging the Company’s rights in or to any
material Intellectual Property, and the Company is unaware of any facts that
would form a reasonable basis for any such claim; (d) to the Company’s best
knowledge, there is no pending or 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 that would form a reasonable basis for
any such claim; and (e) there is no pending or, to the Company’s best knowledge,
threatened action, suit, proceeding or claim by others that the Company’s
business as now conducted infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and the Company
is unaware of any other fact that would form a reasonable basis for any such
claim.
(u) All Necessary Permits,
etc. The
Company and each subsidiary possess such valid and current material licenses,
certificates, authorizations or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct their respective
businesses, and neither the Company nor any subsidiary has received any notice
of proceedings relating to the revocation or modification of, or non-compliance
with, any such license, certificate, authorization or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
could have a Material Adverse Effect.
(v)
Title to
Properties. The Company and
each of its subsidiaries has good and marketable title to all the properties and
assets reflected as owned in the financial statements referred to in Section
1(A)(l) above (or elsewhere in the Disclosure Package and the Prospectus), in
each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not materially
interfere with the use made or proposed to be made of such property by the
Company or such subsidiary. The real property, improvements,
equipment and personal property held under lease by the Company or any
subsidiary are held under valid and enforceable leases, with such exceptions as
are not material and do not materially interfere with the use made or proposed
to be made of such real property, improvements, equipment or personal property
by the Company or such subsidiary.
(w)
Tax Law Compliance. The Company and
its subsidiaries have filed all necessary federal, state, local and foreign
income and franchise tax returns in a timely manner and have paid all taxes
required to be paid by any of them and, if due and payable, any related or
similar assessment, fine or penalty levied against any of them, except for any
taxes, assessments, fines or penalties as may be being contested in good faith
and by appropriate proceedings. The Company has made appropriate
provisions in the applicable financial statements referred to in Section 1
(A)(l) above in respect of all federal, state, local and foreign income and
franchise taxes for all current or prior periods as to which the tax liability
of the Company or any of its subsidiaries has not been finally
determined.
(x)
Company Not an “Investment
Company”. The Company has
been advised of the rules and requirements under the Investment Company Act of
1940, as amended, and the rules and regulations promulgated thereunder (the
“Investment Company
Act”). The Company is not an “investment company” within the
meaning of the Investment Company Act and will conduct its business in a manner
so that it will not become subject to the Investment Company Act.
(y) Compliance with Reporting
Requirements. The Company is subject to and in full compliance
with the reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
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(z) Insurance. The Company and
its subsidiaries are insured by recognized, financially sound and reputable
institutions with policies in such amounts and with such deductibles and
covering such risks as are generally deemed adequate and customary for their
businesses including, but not limited to, policies covering real and personal
property owned or leased by the Company and its subsidiaries against theft,
damage, destruction, acts of vandalism or terrorism and other risks customarily
insured against. All policies of insurance insuring the Company or
any of its subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments
in all material respects; and there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause;
and neither the Company nor any such subsidiary has been refused any insurance
coverage sought or applied for. The Company has no reason to believe
that it or any subsidiary will not be able (i) to renew its existing insurance
coverage as and when such policies expire or (ii) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that would not have a Material Adverse
Effect.
(aa) No Restrictions on Dividends or
Other Distributions. No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends or other
distributions 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.
(bb) No Price Stabilization or
Manipulation. The Company has
not taken and will not take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Shares. The Company acknowledges that the Underwriters may
engage in passive market making transactions in the Shares on the Nasdaq Stock
Market, Inc. in accordance with Regulation M under the Exchange
Act.
(cc)
Related Party
Transactions. There are no
business relationships or related-party transactions involving the Company or
any subsidiary or any other person required to be described in the preliminary
prospectus or the Prospectus that have not been described as required.
(dd) Internal Controls and
Procedures. The Company maintains (i) effective internal
control over financial reporting as defined in Rule 13a-15 under the Exchange
Act and (ii) a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with
management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (C) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(ee) No Material Weakness in Internal
Controls. Except as disclosed in the Disclosure Package and
the Prospectus, or
in any document incorporated by reference therein, since the end of the
Company’s most recent audited fiscal year, there has been (i) no material
weakness in the Company’s internal control over financial reporting (whether or
not remediated) and (ii) 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.
(ff) Disclosure Controls. The Company and its subsidiaries maintain an
effective system of “disclosure controls and procedures” (as defined in Rule
13a-15 under the Exchange Act) that is designed to ensure that information
required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure. The Company and its
subsidiaries have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 15d-15 under the Exchange
Act.
(gg)
Earnings
Statement. The Company agrees with each of the Underwriters to
make generally available to its securityholders as soon as practicable, but in
any event not later than 16 months after the date hereof, an earnings
statement covering a period of at least 12 months beginning after the date
hereof and otherwise satisfying Section 11(a) of the Securities
Act.
(ii) No Unlawful Contributions or Other
Payments. 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 FCPA, including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA, and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
(jj) No Conflict with Money Laundering
Laws. 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 of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all applicable jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator 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.
(kk) No Conflict with OFAC
Laws. 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
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering, 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.
5
(ll) Compliance with Environmental
Laws. Except as
otherwise disclosed in the Disclosure Package and the Prospectus, (i) neither
the Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign law, regulation, order, permit or other requirement relating to
pollution or protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including without limitation, laws and regulations relating
to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum and petroleum products (collectively, “Materials of Environmental
Concern”), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, “Environmental Laws”),
which violation includes, but is not limited to, noncompliance with any permits
or other governmental authorizations required for the operation of the business
of the Company or its subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company or any
of its subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that alleges that
the Company or any of its subsidiaries is in violation of any Environmental Law,
except as would not, individually or in the aggregate, have a Material Adverse
Effect; (ii) there is no claim, action or cause of action filed with a court or
governmental authority, no investigation with respect to which the Company has
received written notice, and no written notice by any person or entity alleging
potential liability for investigatory costs, cleanup costs, governmental
responses costs, natural resources damages, property damages, personal injuries,
attorneys’ fees or penalties arising out of, based on or resulting from the
presence, or release into the environment, of any Material of Environmental
Concern at any location owned, leased or operated by the Company or any of its
subsidiaries, now or in the past (collectively, “Environmental
Claims”), pending or, to the best of the Company’s knowledge, threatened
against the Company or any of its subsidiaries or any person or entity whose
liability for any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law, except as would
not, individually or in the aggregate, have a Material Adverse Effect; (iii) to
the best of the Company’s knowledge, there are no past, present or anticipated
future actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result
in a violation of any Environmental Law, require expenditures to be incurred
pursuant to Environmental Law, or form the basis of a potential Environmental
Claim against the Company or any of its subsidiaries or against any person or
entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law, except as would not, individually or in the aggregate, have a Material
Adverse Effect; and (iv) neither the Company nor any of its subsidiaries is
subject to any pending or, to the best knowledge of the Company after due
inquiry, threatened proceeding under Environmental Law to which a governmental
authority is a party and which is reasonably likely to result in monetary
sanctions of $100,000 or more.
(mm) Periodic Review of Costs of
Environmental Compliance. In the ordinary
course of its business, the Company conducts a periodic review of the effect of
Environmental Laws on the business, operations and properties of the Company and
its subsidiaries, in the course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third
parties). On the basis of such review and the amount of its
established reserves, the Company has reasonably concluded that such associated
costs and liabilities would not, individually or in the aggregate, have a
Material Adverse Effect.
(nn) ERISA Compliance. 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,
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 the
Company or any of its subsidiaries that could have a Material Adverse Effect;
(iii) any breach of any contractual obligation, or any violation of law or
applicable qualification standards, with respect to the employment or
compensation of employees by the Company or any of its subsidiaries that could
have a Material Adverse Effect. None of the following events has
occurred or is reasonably likely to occur: (i) a material increase in
the aggregate amount of contributions required to be made to all Plans in the
current fiscal year of the Company and its subsidiaries compared to the amount
of such contributions made in the Company and its subsidiaries’ most recently
completed fiscal year other than as disclosed in Note 8, “Retirement Plans,” to
the Company’s consolidated financial statements that are incorporated by
reference into its annual report on Form 10-K for the year ended March 31, 2009,
filed with the Commission on June 12, 2009; (ii) a material increase in the
Company and its subsidiaries’ “accumulated post-retirement benefit obligations”
(within the meaning of Statement of Financial Accounting Standards 106) compared
to the amount of such obligations in the Company and its subsidiaries’ most
recently completed fiscal year; (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 its or 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.
(oo) Brokers. There is no broker, finder
or other party that is entitled to receive from the Company any brokerage or
finder’s fee or other fee or commission as a result of any transactions
contemplated by this Agreement.
(pp) No Outstanding Loans or Other
Indebtedness. There are no
outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees or indebtedness by the Company to or
for the benefit of any of the officers or directors of the Company or any of the
members of any of their families, except as disclosed in the Disclosure Package
and the Prospectus.
(qq) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Compliance. 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”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(rr)
Subsidiaries. The
subsidiaries listed on Annex A attached hereto are the only significant
subsidiaries of the Company as defined by Rule 1-02 of Regulation S-X (the
“Subsidiaries”).
(ss) Lending
Relationship. Except as disclosed in the Disclosure Package
and the Prospectus, the Company does not have any material lending or other
relationship with any bank or lending affiliate of any Underwriter.
(tt) Statistical and Market Related
Data. Nothing has come to the attention of the Company that
has caused the Company to believe that the statistical and market-related data
included in the Disclosure Package and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material
respects.
6
(uu) Immunity from
Jurisdiction. Neither the Company nor any of its subsidiaries
nor any of its or their properties or assets has any immunity from the
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution or
otherwise) under the laws of New York and the United States.
Any
certificate signed by an officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
B. Representations and Warranties of
the Selling Shareholders. Each Selling
Shareholder severally and not jointly represents, warrants and covenants to each
Underwriter as follows:
(a) The Underwriting
Agreement. This Agreement
has been duly authorized, executed and delivered by or on behalf of such Selling
Shareholder.
(b) The Custody Agreement and Power of
Attorney. In the case of
Selling Shareholders party to the Custody Agreement (defined below),
certificates in negotiable form representing all of the Shares to be sold by
such Selling Shareholders hereunder or representing Shares of the Company’s
capital stock convertible into such Shares have been placed in custody under a
Custody Agreement, in the form heretofore furnished to you (the “Custody Agreement”),
duly executed and delivered by such Selling Shareholders to National City Bank,
as custodian (the “Custodian”), and in
the case of Selling Shareholders party to the Power of Attorney (as defined
below), such Selling Shareholders have duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the “Power of Attorney”),
appointing the persons indicated on the signature page hereof, and each of them,
as such Selling Shareholders’ attorneys-in-fact (the “Attorneys-in-Fact”)
with authority to execute and deliver this Agreement on behalf of such Selling
Shareholders, to determine the purchase price to be paid by the Underwriters to
the Selling Shareholders as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Shareholders hereunder and
otherwise to act on behalf of such Selling Shareholders in connection with the
transactions contemplated by this Agreement and the Custody
Agreement. Each of the (i) Custody Agreement signed by such Selling
Shareholders and the Custodian, relating to the deposit of the Shares to be sold
by such Selling Shareholders and (ii) the Power of Attorney of such Selling
Shareholders has been duly authorized, executed and delivered by such Selling
Shareholders.
(c) Obligations of the Selling
Shareholder. The Shares represented by the certificates held
in custody for such Selling Shareholder under the Custody Agreement are subject
to the interests of the Underwriters hereunder; the arrangements made by such
Selling Shareholder for such custody, and the appointment by such Selling
Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to that
extent irrevocable; the obligations of the Selling Shareholders hereunder shall
not be terminated by operation of law, whether by the death or incapacity of any
individual Selling Shareholder or, in the case of an estate or trust, by the
death or incapacity of any executor or trustee or the termination of such estate
or trust, or in the case of a partnership or corporation, by the dissolution of
such partnership or corporation, or by the occurrence of any other event; if any
individual Selling Shareholder or any such executor or trustee should die or
become incapacitated, or if any such estate or trust should be terminated, or if
any such partnership or corporation should be dissolved, or if any other such
event should occur, before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of the Selling
Shareholders in accordance with the terms and conditions of this Agreement and
of the Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant
to the Powers of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of whether
or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received
notice of such death, incapacity, termination, dissolution or other
event.
(d) Title to Shares to be
Sold.
(i) To
the extent that the Shares of any Selling Shareholder are held through the
facilities of DTC, such Selling Shareholder has a security entitlement (within
the meaning of Section 8-102(a)(17) of the Uniform Commercial Code (“UCC”) to, and has
good and valid beneficial ownership of, the Shares maintained in a securities
account on the books of the Custodian, or, in the case of ▇▇▇▇▇ ▇▇▇▇▇, in a
securities account on the books of Maxim Group, LLC, free and clear of any
action that may be asserted based on an adverse claim with respect to such
security entitlement, and assuming that the Underwriters acquire their interest
in the Shares they have purchased without notice of any adverse claim (within
the meaning of Section 8-105 of the UCC), upon the crediting of such Shares to
the securities account of such Underwriters maintained with DTC and payment
therefor by such Underwriters, as provided herein, such Underwriters will have
acquired a security entitlement to such Shares, and no action based on any
adverse claim may be asserted against such Underwriters with respect to such
security entitlement.
(ii) To
the extent that the Shares of any Selling Shareholder are held in certificated
form, such Selling Shareholder is the record and beneficial owner of the Shares
free and clear of any security interest, mortgage, pledge, lien, encumbrance or
other claim and has duly endorsed such securities in blank, and assuming that
each Underwriter acquires its interest in the securities it has purchased
without notice of any adverse claim (within the meaning of Section 8-105 of the
UCC), each Underwriter that has purchased securities delivered on the date
hereof to DTC by making payment therefor, as provided herein, and that has had
such securities credited to the securities account or accounts of such
Underwriter maintained with DTC will have acquired a security entitlement
(within the meaning of Section 8-102(a)(17) of the UCC) to such securities
purchased by such Underwriter, and no action based on an adverse claim, may be
asserted against such Underwriter with respect to such securities.
(e) Conversions. To
the extent applicable, the Selling Shareholders have executed and delivered a
notice of election to the Company under the Certificate of Incorporation of the
Company to cause the conversion of the shares of Class B Common Stock, par value
$0.25 per share, or convertible participating preferred stock, par value $0.25
per share (the “Preferred Stock”),
(either directly or through the Custodian) into Shares.
(f) All Authorizations
Obtained. Such Selling Shareholder has the legal right and
power, and all authorizations and approvals required by law and under its
charter or by-laws or other organizational documents to enter into this
Agreement and its Custody Agreement and Power of Attorney, to sell, transfer and
deliver all of the Shares which may be sold by such Selling Shareholder pursuant
to this Agreement and to comply with its other obligations hereunder and
thereunder.
7
(g) Delivery of the Shares to be
Sold. Delivery of the
Shares which are sold by such Selling Shareholder pursuant to this Agreement
will pass good and valid title to such Shares, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or other claim.
(h) Non-Contravention; No Further
Authorizations or Approvals Required. The execution
and delivery by such Selling Shareholder of, and the performance by such Selling
Shareholder of its obligations under, this Agreement, the Custody Agreement and
the Power of Attorney (i) will not result in any Default under, or require the
consent of any other party to, the charter or by-laws or other organizational
documents of such Selling Shareholder, (ii) will not conflict with or constitute
a breach of, or Default under, any other agreement or instrument to which such
Selling Shareholder is a party or by which it is bound or under which it is
entitled to any right or benefit and (iii) will not result in any violation of
any statute, law, regulation, order or decree applicable to such Selling
Shareholder of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over such Selling
Shareholder or its properties, except in the case of clauses (ii) and (iii) as
would not individually or in the aggregate be reasonably expected to impair in
any material respect the ability of such Selling Shareholder to consummate the
transactions contemplated by this Agreement, the Power of Attorney or the
Custody Agreement. No consent, approval, authorization or other order
of, or registration or filing with, any court or other governmental authority or
agency, is required for the consummation by such Selling Shareholder of the
transactions contemplated in this Agreement, except such as have been obtained
or made and are in full force and effect under the Securities Act, applicable
state securities or blue sky laws and from FINRA.
(i) No Registration or Other Similar
Rights. Except as
provided by the Registration Rights Agreement dated as of June 22, 1998 and
amended as of June 8, 2009 (the “Registration Rights Agreement”) among the
Company and certain of its shareholders named therein, such Selling Shareholder
does not have any registration or other similar rights to have any equity or
debt securities registered for sale by the Company under the Registration
Statement or included in the offering contemplated by this
Agreement.
(j) No Further Consents,
etc. Except for the (i) exercise by the Selling Shareholders
of certain registration rights pursuant to the Registration Rights Agreement
(which registration rights have been duly exercised pursuant thereto) or as
otherwise provided in the Registration Rights Agreement, (ii) conversion by the
Selling Shareholders of the Class B Common Stock and the Preferred Stock into
Shares, and (iii) consent of such Selling Shareholder to the respective number
of Shares to be sold by all of the Selling Shareholders pursuant to this
Agreement, no consent, approval or waiver is required under any instrument or
agreement to which such Selling Shareholder is a party or by which it is bound
or under which it is entitled to any right or benefit, in connection with the
offering, sale or purchase by the Underwriters of any of the Shares which may be
sold by such Selling Shareholder under this Agreement or the consummation by
such Selling Shareholder of any of the other transactions contemplated
hereby.
(k) Disclosure Made by Such Selling
Shareholder in the Prospectus. All information
furnished by or on behalf of such Selling Shareholder to the Company in writing
expressly for use in the Registration Statement, the Prospectus or any free
writing prospectus as defined in Rule 405 under the Securities Act (“Free Writing
Prospectus”) or any amendment or supplement thereto used by the Company
or any Underwriter, as the case may be, (it being understood and agreed that the
only information furnished on behalf of any Selling Shareholder is the
information described in Section 8(b) below) is, as of the Applicable Time, and
on the Closing Date and any Subsequent Closing Date will be, true, correct and
complete in all material respects, and as of the Applicable Time does not, and
on the Closing Date and any Subsequent Closing Date will not, contain any untrue
statement of a material fact or omit to state any material fact necessary to
make such information not misleading (in the case of the Prospectus,
or any Free Writing Prospectus or prospectus supplement, in the light of the
circumstances under which they were made). In addition, such Selling
Shareholder confirms as accurate the number of shares of Common Stock set forth
opposite such Selling Shareholder’s name in the Disclosure Package and the
Prospectus under the caption “Principal and Selling Shareholders” (both prior to
and after giving effect to the sale of the Shares).
(l) No Price Stabilization or
Manipulation. Such Selling
Shareholder has not taken and will not take, directly or indirectly, any action
designed to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(m) No Inside
Information. In the case of ▇▇▇▇ ▇▇▇▇▇ Management Company, LP
and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇, the sale of the Shares by such Selling Shareholders
pursuant hereto is not prompted by any material non-public information
concerning the Company which is not set forth or incorporated by reference in
the Prospectus or any supplement thereto.
(n) No Free Writing
Prospectuses. Such Selling Shareholder represents that it has
not prepared or had prepared on its behalf or used or referred to, any Free
Writing Prospectus, and represents that it has not distributed any written
materials in connection with the offer or sale of the Securities.
Any
certificate signed by or on behalf of any Selling Shareholder and delivered to
the Representatives or to counsel for the Underwriters shall be deemed to be a
representation and warranty by such Selling Shareholder to each Underwriter as
to the matters covered thereby.
Section
2. Purchase, Sale
and Delivery of the Shares.
(a) The Firm Shares. The Selling
Shareholders agree to sell to the several Underwriters the Firm Shares upon the
terms set forth herein, with each Selling Shareholder selling the number of Firm
Shares set forth opposite such Selling Shareholder’s name on Schedule
B. On the basis of the representations, warranties and agreements
herein contained, and upon the terms but subject to the conditions herein set
forth, the Underwriters agree, severally and not jointly, to purchase from the
Selling Shareholders the respective number of Firm Shares set forth opposite
their names on Schedule A. The purchase price per Firm Share to be
paid by the several Underwriters to the Selling Shareholders shall be $20.68 per
share.
(b) The Closing Date. Delivery of
certificates for the Firm Shares to be purchased by the Underwriters and payment
therefor shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (or such other place as may be agreed
to by the Company and ML) at 9:00 a.m., New York time, on July 21, 2009 or such
other time and date not later than 1:30 p.m. New York time, on August 4,
2009, as
ML shall designate by notice to the Company (the time and date of such closing
are called the “Closing
Date”).
8
(c) The Optional Shares; the Subsequent
Closing Date. In addition, on
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Selling
Shareholders hereby grant an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of 489,956 Optional Shares from
the Selling Shareholders at the same price as the purchase price per share to be
paid by the Underwriters for the Firm Shares. The option granted
hereunder may be exercised at any time and from time to time upon notice by ML
to the Selling Shareholders (with a copy to the Company), which notice may be
given at any time within 30 days from the date of this
Agreement. Such notice shall set forth (i) the aggregate number of
Optional Shares as to which the Underwriters are exercising the option, (ii) the
names and denominations in which the certificates for the Optional Shares are to
be registered and (iii) the time, date and place at which such certificates will
be delivered (which time and date may be simultaneous with, but not earlier
than, the Closing Date; and in such case the term “Closing Date” shall refer to
the time and date of delivery of certificates for the Firm Shares and the
Optional Shares). Each time and date of delivery, if subsequent to
the Closing Date, is called a “Subsequent Closing
Date” and shall be determined by ML and shall not be earlier than three
nor later than five full business days after delivery of such notice of
exercise. If any Optional Shares are to be purchased, (a) each
Underwriter agrees, severally and not jointly, to purchase the number of
Optional Shares (subject to such adjustments to eliminate fractional shares as
ML may determine) that bears the same proportion to the total number of Optional
Shares to be purchased as the number of Firm Shares set forth on Schedule A
opposite the name of such Underwriter bears to the total number of Firm Shares
and (b) each Selling Shareholder agrees, severally and not jointly, to sell the
number of Optional Shares (subject to such adjustments to eliminate fractional
shares as ML may determine) that bears the same proportion to the total number
of Optional Shares to be sold as the number of Optional Shares set forth in
Schedule B opposite the name of such Selling Shareholder bears to the total
number of Optional Shares.
(d) Public Offering of the
Shares. The
Representatives hereby advise the Company and the Selling Shareholders that the
Underwriters intend to offer for sale to the public, as described in the
Prospectus, their respective portions of the Shares as soon after this Agreement
has been executed and the Registration Statement has been declared effective as
ML, in its sole judgment, has determined is advisable and
practicable.
(e) Payment for the Shares. Payment for the
Shares to be sold by the Selling Shareholders shall be made at the Closing Date
(and, if applicable, at any Subsequent Closing Date) by wire transfer of
immediately available funds to the order of the Custodian.
It is
understood that the Representatives have been authorized, for their own account
and the accounts of the several Underwriters, to accept delivery of and receipt
for, and make payment of the purchase price for, the Firm Shares and any
Optional Shares the Underwriters have agreed to purchase. ML,
individually and not as the Representative of the Underwriters, may (but shall
not be obligated to) make payment for any Shares to be purchased by any
Underwriter whose funds shall not have been received by the Representatives by
the Closing Date or any Subsequent Closing Date, as the case may be, for the
account of such Underwriter, but any such payment shall not relieve such
Underwriter from any of its obligations under this Agreement.
Each
Selling Shareholder hereby agrees that it will pay all stock transfer
taxes, stamp duties and other similar taxes, if any, payable upon the sale or
delivery of the Shares to be sold by such Selling Shareholder to the several
Underwriters, or otherwise in connection with the performance of such Selling
Shareholder’s obligations hereunder.
(f) Delivery of the Shares. Delivery of the Firm Shares
and the Optional Shares shall be made through the facilities of The Depository
Trust Company unless ML shall otherwise instruct. Time shall be of
the essence, and delivery at the time and place specified in this Agreement is a
further condition to the obligations of the Underwriters.
(g) Delivery of Prospectus to the
Underwriters. Not later than 3:00 p.m. on the first business
day in New York City following the date of this Agreement, the Company shall
deliver or cause to be delivered, copies of the Prospectus in such quantities
and at such places as ML shall request.
Section
3. Covenants.
A. Covenants of the
Company. The Company covenants and agrees with each
Underwriter as follows:
(a) ML’s Review of Proposed Amendments
and Supplements. During the
period beginning on the Applicable Time and ending on the later of the Closing
Date or such date, as in the opinion of counsel for the Underwriters, the
Prospectus is no longer required by law to be delivered in connection with sales
by an Underwriter or dealer, including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act (the “Prospectus Delivery
Period”), prior to amending or supplementing the Registration Statement,
the Disclosure Package or the Prospectus (including any amendment or supplement
through incorporation by reference of any report filed under the Exchange Act),
subject to Section 3(A)(e), the Company shall furnish to ML for review a copy of
each such proposed amendment or supplement, and the Company shall not file or
use any such proposed amendment or supplement to which ML reasonably
objects.
9
(b) Securities Act
Compliance. After the date
of this Agreement, the Company shall promptly advise ML in writing (i) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (ii) of the receipt of any comments of, or requests for
additional or supplemental information from, the Commission, (iii) of the time
and date of any filing of any post-effective amendment to the Registration
Statement or any amendment or supplement to any preliminary prospectus or the
Prospectus, (iv) of the time and date that any post-effective amendment to the
Registration Statement becomes effective and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order or notice preventing or suspending the use of the
Registration Statement, any preliminary prospectus or the Prospectus, or of any
proceedings to remove, suspend or terminate from listing or quotation the Common
Stock from any securities exchange upon which it is listed for trading or
included or designated for quotation, or of the threatening or initiation of any
proceedings for any of such purposes. The Company shall use its best
efforts to prevent the issuance of any such stop order or notice of prevention
or suspension of such use. If the Commission shall enter any such
stop order or issue any such notice at any time, the Company will use its best
efforts to obtain the lifting or reversal of such order or notice at the
earliest possible moment, or, subject to Section 3(A)(a), will file an amendment
to the Registration Statement or will file a new registration statement and use
its best efforts to have such amendment or new registration statement declared
effective as soon as practicable. Additionally, the Company agrees
that it shall comply with the provisions of Rules 424(b) and 430B, as
applicable, under the Securities Act, including with respect to the timely
filing of documents thereunder, and will use its reasonable efforts to confirm
that any filings made by the Company under such Rule 424(b) under the Securities
Act were received in a timely manner by the Commission.
(c) Exchange Act
Compliance. During the Prospectus Delivery Period, the Company
will file all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act in the manner and within the time
periods required by the Exchange Act.
(d) Amendments and Supplements to the
Registration Statement, Disclosure Package and Prospectus and Other Securities
Act Matters. If, during the
Prospectus Delivery Period, any event or development shall occur or condition
exist as a result of which the Disclosure Package or the Prospectus as then
amended or supplemented would include 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 or then
prevailing, as the case may be, not misleading, or if it shall be necessary to
amend or supplement the Disclosure Package or the Prospectus, or to file under
the Exchange Act any document incorporated by reference in the Disclosure
Package or the Prospectus, in order to make the statements therein, in the light
of the circumstances under which they were made or then prevailing, as the case
may be, not misleading, or if in the opinion of ML it is otherwise necessary or
advisable to amend or supplement the Registration Statement, the Disclosure
Package or the Prospectus, or to file under the Exchange Act any document
incorporated by reference in the Disclosure Package or the Prospectus, or to
file a new registration statement containing the Prospectus, in order to comply
with law, including in connection with the delivery of the Prospectus, the
Company agrees to (i) notify ML of any such event or condition and (ii) promptly
prepare (subject to Sections 3(A)(a) and 3(A)(e) hereof), file with the
Commission (and use its best efforts to have any amendment to the Registration
Statement or any new registration statement to be declared effective) and
furnish at its own expense to the Underwriters and to dealers, amendments or
supplements to the Registration Statement, the Disclosure Package or the
Prospectus, or any new registration statement, necessary in order to make the
statements in the Disclosure Package or the Prospectus as so amended or
supplemented, in the light of the circumstances under which they were made or
then prevailing, as the case may be, not misleading or so that the Registration
Statement, the Disclosure Package or the Prospectus, as amended or supplemented,
will comply with law.
(e) Permitted Free Writing
Prospectuses. The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of ML, it will not
make, any offer relating to the Shares that constitutes or would constitute an
Issuer Free Writing Prospectus or that otherwise constitutes or would constitute
a Free Writing Prospectus or a portion thereof required to be filed by the
Company with the Commission or retained by the Company under Rule 433 under the
Securities Act; provided that the prior written consent of ML hereto shall be
deemed to have been given in respect of the Issuer Free Writing Prospectuses
included in Schedule C hereto and any electronic road show. Any such
free writing prospectus consented to by ML is hereinafter referred to as a
“Permitted Free Writing Prospectus”. The Company agrees that (i) it
has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433 under the
Securities Act applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record
keeping.
(f) Copies of any Amendments and
Supplements to the Prospectus. The Company
agrees to furnish the Representatives, without charge, during the Prospectus
Delivery Period, as many copies of the Prospectus and any amendments and
supplements thereto (including any documents incorporated or deemed incorporated
by reference therein) and the Disclosure Package as the Representatives may
request.
(g) Copies of the Registration Statement
and the Prospectus. The Company will furnish to the
Representatives and counsel for the Underwriters signed copies of the
Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each preliminary prospectus, the Prospectus and any supplement thereto
and the Disclosure Package as the Representatives may reasonably
request.
(h) Blue Sky Compliance. The Company
shall cooperate with the Representatives and counsel for the Underwriters to
qualify or register the Shares for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws or Canadian provincial
securities laws of those jurisdictions designated by the Representatives, shall
comply with such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the
Shares. The Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general service of
process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign corporation, other than those arising
out of the offering or sale of the Shares in any jurisdiction where it is not
now so subject. The Company will advise the Representatives promptly
of the suspension of the qualification or registration of (or any such exemption
relating to) the Shares for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the event of
the issuance of any order suspending such qualification, registration or
exemption, the Company shall use its best efforts to obtain the withdrawal
thereof at the earliest possible moment.
(i) Transfer Agent. The Company
shall maintain, at its expense, a registrar and transfer agent for the Common
Stock.
(j) Earnings Statement. As soon as
practicable, the Company will make generally available to its security holders
and to the Representatives an earnings statement (which need not be audited)
covering the twelve-month period ending September 30, 2010 that satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158 under the
Securities Act.
10
(k) Periodic Reporting
Obligations. During the
Prospectus Delivery Period the Company shall file, on a timely basis, with the
Commission and the Nasdaq Stock Market, Inc. all reports and documents required
to be filed under the Exchange Act.
(l) Listing. The
Company will use its best efforts to list, subject to notice of issuance, the
Shares on the Nasdaq Stock Market, Inc.
(m) Agreement Not to Offer or Sell
Additional Shares. During the period
commencing on the date hereof and ending on the 90th day
following the date of the Prospectus, the Company will not, without the prior
written consent of ML (which consent may be withheld at the sole discretion of
ML), directly or indirectly, sell, offer, contract or grant any option to sell,
pledge, transfer or establish an open “put equivalent position” or liquidate or
decrease a “call equivalent position” within the meaning of Rule 16a-1(h) under
the Exchange Act, or otherwise dispose of or transfer (or enter into any
transaction that is designed to, or might reasonably be expected to, result in
the disposition of), or announce the offering of, or file any registration
statement under the Securities Act in respect of, any shares of Common Stock,
options or warrants to acquire shares of the Common Stock or securities
exchangeable or exercisable for or convertible into shares of Common Stock
(other than as contemplated by this Agreement with respect to the Shares);
provided, however, that the Company may issue shares of its Common Stock
pursuant to any stock plan or arrangement disclosed in the Disclosure Package
and the Prospectus.
(n) Compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
The Company will comply with all applicable securities and other laws,
rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act,
and use its best efforts to cause the Company’s directors and officers, in their
capacities as such, to comply with such laws, rules and regulations, including,
without limitation, the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(o) Future Reports to
Shareholders. To furnish to its shareholders within the
required timeframe of the Commission after the end of each fiscal year an annual
report (including a balance sheet and statements of income, shareholders’ equity
and cash flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, within the required timeframe of the
Commission after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the
Registration Statement), to make available to its shareholders consolidated
summary financial information of the Company and its subsidiaries for such
quarter in reasonable detail.
(p) Future Reports to the
Representatives. During the
period of five years hereafter the Company will furnish to the Representatives
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Syndicate Department (i) as
soon as practicable after the end of each fiscal year, copies of the Annual
Report of the Company containing the balance sheet of the Company as of the
close of such fiscal year and statements of income, shareholders’ equity and
cash flows for the year then ended and the opinion thereon of the Company’s
independent public or certified public accountants; (ii) as soon as practicable
after the filing thereof, copies of each proxy statement, Annual Report on Form
10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report
filed by the Company with the Commission, FINRA or any securities exchange; and
(iii) as soon as available, copies of any report or communication of the Company
mailed generally to holders of its capital stock; provided that the Company
shall not be required to comply with clauses (i), (ii) and (iii) of this Section
3(A)(p) so long as the reports and documents referred to therein are otherwise
publicly available from the Commission’s website.
(q) No Manipulation of Price. The Company will
not take, directly or indirectly, any action designed to cause or result in, or
that has constituted or might reasonably be expected to constitute, under the
Exchange Act or otherwise, the stabilization or manipulation of the price of any
securities of the Company to facilitate the sale or resale of the
Shares.
(r) Existing Lock-Up
Agreement. The Company will
enforce all existing agreements between the Company and any of its security
holders that prohibit the sale, transfer, assignment, pledge or hypothecation of
any of the Company’s securities. In addition, the Company will direct
the transfer agent to place stop transfer restrictions upon any such securities
of the Company that are bound by such existing “lock-up” agreements for the
duration of the periods contemplated in such agreements.
B. Covenants of the Selling
Shareholders. Each Selling
Shareholder severally and not jointly further covenants and agrees with each
Underwriter:
(a) Agreement Not to Offer or Sell
Additional Shares. Such Selling
Shareholder will not, without the prior written consent of ML (which consent may
be withheld in its sole discretion), directly or indirectly, sell, offer,
contract or grant any option to sell (including without limitation any short
sale), pledge, transfer, establish an open “put equivalent position” or
liquidate or decrease a “call equivalent position” within the meaning of Rule
16a-1(h) under the Exchange Act, or otherwise dispose of or transfer (or enter
into any transaction that is designed to, or might reasonably be expected to,
result in the disposition of) any shares of Common Stock, options or warrants to
acquire shares of Common Stock, or securities exchangeable or exercisable for or
convertible into shares of Common Stock currently or hereafter owned either of
record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by such
Selling Shareholder (collectively, “Securities”), or
publicly announce such Selling Shareholder’s intention to do any of the
foregoing, for a period commencing on the date hereof and continuing through the
close of trading on the date 90 days after the public offering date set forth on
the Prospectus (the “Lock-Up
Period”). In addition, such Selling Shareholder agrees that,
without the prior written consent of ML, it will not, during the Lock-Up Period,
make any demand for or exercise any right with respect to, the registration of
any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock. The foregoing sentence shall not apply
to (i) the Shares to be sold by the Selling Shareholders hereunder, (ii)
transfers to partners or members of the Selling Shareholders, as applicable, or
to the estates of any such partners or members, to majority-owned subsidiaries
of the Selling Shareholders, to holders of securities possessing at least 50% of
the Selling Shareholders’ outstanding voting power or to entities under common
control with the Selling Shareholders, (iii) the transfer of any or all of the
Shares of Common Stock owned by such Selling Shareholder, either during his or
her lifetime or on death, by gift, will or intestate succession to the immediate
family of such Selling Shareholder or to a trust the beneficiaries of which are
exclusively such Selling Shareholder and/or a member or members of his or her
immediate family (for purposes of this Section 3B(a), “immediate family” shall
mean any relationship by blood, marriage or adoption, not more remote than first
cousin) or (iv) any bona fide gifts to any charitable organization; provided,
however, that in any such case it shall be a pre-condition to such transfer that
(a) the transferee or donee executes and delivers to ML a lock-up agreement in
form and substance satisfactory to ML, (b) no filing by any party (transferor,
transferee, donor or donee) under the Exchange Act shall be required or shall be
voluntarily made in connection with such transfer or distribution (other than a
filing on a Form 5, Schedule 13D or Schedule 13G (or 13D A or 13G A) made after
the expiration of the Lock-Up Period), (c) each party (transferor, transferee,
donor or donee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act and the Exchange Act) to make, and
shall agree to not voluntarily make, any public announcement of the transfer or
disposition and (d) such Selling Shareholder shall notify ML at least three
business days prior to the proposed transfer or disposition. As used herein,
“control” means having, directly or indirectly, the power to elect or appoint a
majority of the board of directors or managing members of the person or entity
or to direct or cause the direction of the management or policies of a person or
entity, whether by holding voting securities, by contract or
otherwise.
11
(b) Delivery of Forms W-8 and
W-9. To deliver to
the Representatives prior to the Closing Date a properly completed and executed
United States Treasury Department Form W-8 (if the Selling Shareholder is a
non-United States person) or Form W-9 (if the Selling Shareholder is a United
States Person).
(c) Notification of Material
Changes. During the Prospectus Delivery Period, such Selling
Shareholder will advise ML promptly, and if requested by ML, will confirm such
advice in writing, of (i) any Material Adverse Change known to such Selling
Shareholder and not otherwise disclosed in the Disclosure Package, (ii) any
material change in information in the Registration Statement, the Prospectus or
any Free Writing Prospectus or any amendment or supplement thereto relating to
such Selling Shareholder or (iii) any new material information relating to
the Company or relating to any matter stated in the Prospectus or any Free
Writing Prospectus or any amendment or supplement thereto which comes to the
attention of such Selling Shareholder that is not otherwise disclosed in the
Disclosure Package.
(d) No Free Writing
Prospectuses. Such Selling Shareholder agrees that it will not
prepare or have prepared on its behalf or use or refer to, any Free Writing
Prospectus, and agrees that it will not distribute any written materials in
connection with the offer or sale of the Securities.
ML, on
behalf of the several Underwriters, may, in its sole discretion, waive in
writing the performance by the Company or any Selling Shareholder of any one or
more of the foregoing covenants or extend the time for their
performance. Notwithstanding the foregoing, ML, for the benefit of
each of the other Representatives, agrees not to consent to any action proposed
to be taken by the Company, any Selling Shareholder or any other holder of the
Company’s securities that would otherwise be prohibited by, or to waive
compliance by the Company, any Selling Shareholder or any such other security
holder with the provisions of, Section 3(A)(n) or 3(B)(a) above or any lock-up
agreement delivered pursuant to Section 5(k) below without giving each of the
other Representatives at least 17 days prior notice (or such shorter notice as
each of the other Representatives may deem acceptable to permit compliance with
applicable provisions of NASD Conduct Rule 2711(f) of FINRA restricting
publication and distribution of research and public appearances by research
analysts before and after the expiration, waiver or termination of a lock-up
agreement).
Section
4. Payment of
Expenses. The Selling
Shareholders, jointly and severally, agree to pay all costs, fees and expenses
incurred in connection with the performance of their obligations hereunder and
in connection with the transactions contemplated hereby, including without
limitation (i) all expenses incident to the issuance and delivery of the Shares
(including all printing and engraving costs), (ii) all fees and expenses of the
registrar and transfer agent of the Common Stock, (iii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale of the
Shares to the Underwriters, (iv) all reasonable fees and expenses of the
Company’s counsel, independent public or certified public accountants and other
advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), each Issuer Free Writing Prospectus, each preliminary
prospectus and the Prospectus, and all amendments and supplements thereto, and
this Agreement, (vi) all filing fees, reasonable attorneys’ fees and expenses
incurred by the Company or the Underwriters in connection with qualifying or
registering (or obtaining exemptions from the qualification or registration of)
all or any part of the Shares for offer and sale under the state securities or
blue sky laws or the provincial securities laws of Canada, and, if requested by
the Representatives, preparing and printing a “Blue Sky Survey” or memorandum,
and any supplements thereto, advising the Underwriters of such qualifications,
registrations and exemptions, (vii) the filing fees incident to, and the
reasonable fees and expenses of counsel for the Underwriters in connection with,
FINRA’s review and approval of the Underwriters’ participation in the offering
and distribution of the Shares, (viii) the fees and expenses associated with
listing of the Shares on the Nasdaq Stock Market, Inc., (ix) the expenses of the
Company, the Selling Shareholders and the Underwriters in connection with the
marketing and offering of the Shares, including all transportation and other
expenses incurred in connection with presentations to prospective purchasers of
the Shares, except that the Company and the Underwriters will each pay 50% of
the cost of privately chartered airplanes used for such purposes and (x) all
other fees, costs and expenses referred to in Item 14 of Part II of the
Registration Statement. Except as provided in this Section 4, Section
6, Section 8 and Section 9 hereof, the Underwriters shall pay their own
expenses, including the fees and disbursements of their counsel.
The
Selling Shareholders further agree with each Underwriter to pay (directly or by
reimbursement) all fees and expenses incident to the performance of the Selling
Shareholders’ obligations under this Agreement which are not otherwise
specifically provided for herein, including but not limited to (i) fees and
expenses of counsel and other advisors for such Selling Shareholders, including
the fees and expenses of Weil, Gotshal & ▇▇▇▇▇▇ LLP (ii) fees and expenses
of the Custodian and (iii) expenses and taxes incident to the sale and delivery
of the Shares to be sold by such Selling Shareholders to the Underwriters
hereunder (which taxes, if any, may be deducted by the Custodian under the
provisions of Section 2 of this Agreement).
This
Section 4 shall not affect or modify any separate, valid agreement relating to
the allocation of payment of expenses between the Company, on the one hand, and
the Selling Shareholders, on the other hand, or agreement among Selling
Shareholders.
Section
5. Conditions of
the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Shares as provided
herein on the Closing Date and, with respect to the Optional Shares, any
Subsequent Closing Date, shall be subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Shareholders set forth
in Section Sections 1(A) and 1(B), respectively, hereof as of the date hereof
and as of the Closing Date as though then made and, with respect to the Optional
Shares, as of any Subsequent Closing Date as though then made, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the timely performance by the Company and the Selling
Shareholders of their respective covenants and other obligations hereunder, and
to each of the following additional conditions:
(a) Accountants’ Comfort
Letter. On the date
hereof, the Representatives shall have received from BDO ▇▇▇▇▇▇▇, LLP,
independent public accountants for the Company, a letter dated the date hereof
addressed to the Underwriters, the form of which is attached as Exhibit A.
(b) Compliance with Registration
Requirements; No Stop Order; No Objection from FINRA. For the period
from and after effectiveness of this Agreement and prior to the Closing Date
and, with respect to the Optional Shares, any Subsequent Closing
Date:
(i) the
Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430B under the Securities Act) in the manner and
within the time period required by Rule 424(b) under the Securities Act; or the
Company shall have filed a post-effective amendment to the Registration
Statement containing the information required by such Rule 430B under the
Securities Act, and such post-effective amendment shall have become
effective;
(ii) all
material required to be filed by the Company pursuant to Rule 433(d) under the
Securities Act shall have been filed with the Commission within the applicable
time periods prescribed for such filings under such Rule 433 under the
Securities Act;
(iii) no
stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect and
no proceedings for such purpose shall have been instituted or threatened by the
Commission; and
12
(iv) FINRA
shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements.
(c) No Material Adverse or Ratings
Agency Change. For the period
from and after the date of this Agreement and prior to the Closing Date and,
with respect to the Optional Shares, any Subsequent Closing Date:
(i) in
the judgment of ML there shall not have occurred any Material Adverse
Change;
(ii) there
shall not have been any change or decrease specified in the letter or letters
referred to in paragraph (a) of this Section 5 which is, in the sole judgment of
ML, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Shares as contemplated by the Disclosure
Package and the Prospectus.
(iii) there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any securities of the Company or any of its subsidiaries by any
“nationally recognized statistical rating organization” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(d) Opinion of Counsel for the
Company. On the Closing
Date and any Subsequent Closing Date, the Representatives shall have received
the favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & Mugel, LLP, counsel for the
Company, dated as of such Closing Date or Subsequent Closing Date, the form of
which is attached as Exhibit
B.
(e) Opinion of Counsel for the
Underwriters. On the Closing
Date and any Subsequent Closing Date, the Representatives shall have received
the favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for
the Underwriters, dated as of such Closing Date or Subsequent Closing Date, in
form and substance satisfactory to, and addressed to, the Representatives, with
respect to the issuance and sale of the Shares, the Registration Statement, the
Prospectus (together with any supplement thereto), the Disclosure Package and
other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) Officers’ Certificate. On the Closing
Date and any Subsequent Closing Date, the Representatives shall have received a
written certificate executed by the Chairman of the Board, Chief Executive
Officer or President of the Company and the Chief Financial Officer or Chief
Accounting Officer of the Company, dated as of such Closing Date or Subsequent
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and any amendment or
supplement thereto, any Issuer Free Writing Prospectus and any amendment or
supplement thereto and this Agreement, to the effect set forth in subsection (b)
of this Section 5, and further to the effect that:
(i) for
the period from and after the date of this Agreement and prior to such Closing
Date or Subsequent Closing Date, there has not occurred any Material Adverse
Change;
(ii) the
representations and warranties of the Company set forth in Section 1(A) of this
Agreement are true and correct on and as of such Closing Date or Subsequent
Closing Date with the same force and effect as though expressly made on and as
of such Closing Date or Subsequent Closing Date; and
(iii) the
Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date or Subsequent Closing Date.
(g) Bring-down Comfort
Letter. On the Closing
Date and any Subsequent Closing Date, the Representatives shall have received
from BDO ▇▇▇▇▇▇▇, LLP, independent public accountants for the Company, a letter
dated such date, in form and substance satisfactory to the Representatives, to
the effect that they reaffirm the statements made in the letter furnished by
them pursuant to subsection (a) of this Section 5, except that the specified
date referred to therein for the carrying out of procedures shall be no more
than three business days prior to such Closing Date or Subsequent Closing
Date.
(h) Opinion of Counsel for the Selling
Shareholders. On the Closing
Date and any Subsequent Closing Date, the Representatives shall have received
the favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇, LLP, counsel for the
Selling Shareholders dated as of such Closing Date or Subsequent Closing Date,
the form of which is attached as Exhibit
C.
(i) Selling Shareholders’
Certificate. On the Closing
Date and any Subsequent Closing Date, the Representatives shall receive a
written certificate executed by the Attorney-in-Fact of each Selling
Shareholder, dated as of such Closing Date or Subsequent Closing Date, to the
effect that:
(i) the
signer of such certificate have carefully examined the Registration Statement,
the Prospectus, any Issuer Free Writing Prospectus and any amendment or
supplement thereto and this Agreement, and that the representations, warranties
and covenants of such Selling Shareholder set forth in Section 1(B) of this
Agreement are true and correct on and as of such Closing Date or Subsequent
Closing Date with the same force and effect as though expressly made by such
Selling Shareholder on and as of such Closing Date or Subsequent Closing Date;
and
(ii) such
Selling Shareholder has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such Closing
Date.
(j) Selling Shareholders’
Documents. On
the date hereof, the Company and the Selling Shareholders shall have furnished
for review by the Representatives copies of the Powers of Attorney and Custody
Agreements executed by each of the Selling Shareholders and such further
information, certificates and documents as the Representatives may reasonably
request.
13
(k) Lock-Up Agreement from Certain
Securityholders of the Company. On or prior to
the date hereof, the Company shall have furnished to the Representatives an
agreement in the form of Exhibit D hereto from
each of the Company’s directors and executive officers, and such agreement shall
be in full force and effect on the Closing Date and any Subsequent Closing
Date.
(l) Listing of
Shares. The Shares shall have been listed and admitted and
authorized for trading on the Nasdaq Stock Market, Inc., and satisfactory
evidence of such actions shall have been provided to the
Representatives.
(m) Additional Documents. On or before the
Closing Date and any Subsequent Closing Date, the Representatives and counsel
for the Underwriters shall have received such information, documents and
opinions as they may reasonably require for the purposes of enabling them to
pass upon the issuance and sale of the Shares 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.
If any
condition specified in this Section 5 is not satisfied when and as required to
be satisfied, this Agreement may be terminated by ML by notice to the Company
and the Selling Shareholders at any time on or prior to the Closing Date and,
with respect to the Optional Shares, at any time prior to the applicable
Subsequent Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Section 4, Section 6, Section
8, Section 9 and Section 14 shall at all times be effective and shall survive
such termination.
Section
6. Reimbursement of
Underwriters’ Expenses. If this
Agreement is terminated pursuant to Section 5, Section 7, Section 11 or Section
19, or if the sale to the Underwriters of the Shares on the Closing Date or on
any Subsequent Closing Date is not consummated because of any refusal, inability
or failure on the part of the Company or the Selling Shareholders to perform any
agreement herein or to comply with any provision hereof, the Selling
Shareholders agree to reimburse the Representatives and the other Underwriters
(or such Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by the Representatives and the Underwriters in
connection with the proposed purchase and the offering and sale of the Shares,
including but not limited to reasonable fees and disbursements of counsel,
printing expenses, travel expenses, postage, facsimile and telephone
charges.
Section
7. Effectiveness of
this Agreement. This Agreement
shall not become effective until the later of (i) the execution of this
Agreement by the parties hereto and (ii) notification by the Commission to the
Company and the Representatives of the effectiveness of the Registration
Statement under the Securities Act.
Prior to
such effectiveness, this Agreement may be terminated by any party by notice to
each of the other parties hereto, and any such termination shall be without
liability on the part of (a) the Company or the Selling Shareholders to any
Underwriter, except that the Company and the Selling Shareholders shall be
obligated to reimburse the expenses of the Representatives and the Underwriters
pursuant to Sections 4 and 6 hereof or (b) any Underwriter to the Company or the
Selling Shareholders.
Section
8. Indemnification.
(a) Indemnification of the Underwriters
by the Company. The Company
agrees to indemnify and hold harmless each Underwriter, its directors, officers,
employees and agents, and each person, if any, who controls any Underwriter
within the meaning of the Securities Act or the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which such Underwriter,
director, officer, employee, agent or controlling person may become subject,
insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, including any information
deemed to be a part thereof pursuant to Rule 430A, Rule 430B or Rule 430C under
the Securities Act, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (ii) upon any untrue statement or alleged untrue statement of
a material fact contained in any Issuer Free Writing Prospectus, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or any
“road show” (as defined in Rule 433 under the Securities Act) not constituting
an Issuer Free Writing Prospectus (a “Non-IFWP Road Show”),
or the omission or alleged omission therefrom of a material fact, in each case,
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and to reimburse each
Underwriter, its officers, directors, employees, agents and each such
controlling person for any and all expenses (including the fees and
disbursements of counsel chosen by ML) as such expenses are reasonably incurred
by such Underwriter, or its officers, directors, employees, agents or such
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or
expense to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission
based upon and in conformity with written information furnished to the Company
by any Underwriter through ML or by any Selling Shareholder expressly for use in
the Registration Statement, any Issuer Free Writing Prospectus, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or any
Non-IFWP Road Show, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section 8(c) hereof and the only such information furnished by any
Selling Shareholder consists of the information described as such in Section
8(b) hereof. The indemnity agreement set forth in this Section 8(a)
shall be in addition to any liabilities that the Company may otherwise
have.
14
(b) Indemnification of the Underwriters
by the Selling Shareholders. The Selling
Shareholders severally and not jointly agree to indemnify and hold harmless each
Underwriter, its directors, officers, employees and agents, and each person, if
any, who controls any Underwriter within the meaning of the Securities Act or
the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Underwriter, director, officer, employee, agent or
controlling person may become subject, insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430A, Rule 430B or Rule 430C under the Securities Act, or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) upon
any untrue statement or alleged untrue statement of a material fact contained in
any Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or any Non-IFWP Road Show, or the
omission or alleged omission therefrom of a material fact, in each case,
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, and only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, or any amendments thereto, any Issuer Free Writing Prospectus, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or any Non-IFWP Road Show, in reliance upon and in conformity with
written information furnished by the Selling Shareholders for use therein; and
to reimburse each Underwriter, its officers, directors, employees, agents and
each such controlling person for any and all expenses (including the fees and
disbursements of counsel chosen by ML) as such expenses are reasonably incurred
by such Underwriter, or its officers, directors, employees, agents or such
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the
Underwriters and each of the Selling Shareholders hereby acknowledges
that the only information that the Selling Shareholders have
furnished expressly for use in the Registration Statement, any Issuer Free
Writing Prospectus, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or any Non-IFWP Road Show, is the name of such
Selling Shareholder, the address of such Selling Shareholder, the other
information about such Selling Shareholder and the number of shares of capital
stock of the Company beneficially owned by such Selling Shareholder and the
number of Shares to be sold by such Selling Shareholder set forth in the
Disclosure Package and the Prospectus under the captions “Selling Shareholders”
and “The Selling Shareholders”. the liability of each Selling Shareholder under
this Section 8(b) shall be limited to the amount of proceeds received by such
Selling Shareholder in connection with the sale of the Shares under this
Agreement. The indemnity agreement set forth in this Section 8(b)
shall be in addition to any liabilities that the Selling Shareholders may
otherwise have.
(c) Indemnification of the Company, its
Directors and Officers
and the Selling Shareholders by the Underwriters. Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement, the Selling Shareholders and each person, if any, who controls the
Company or any Selling Shareholder within the meaning of the Securities Act or
the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, or any such director, officer, Selling
Shareholder or controlling person may become subject, insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any Issuer
Free Writing Prospectus, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or any Non-IFWP Road Show, or arises out of or
is 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, in each case to the extent, and only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, any Issuer Free Writing Prospectus, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or any Non-IFWP Road Show, in reliance upon and in conformity with
written information furnished to the Company and the Selling Shareholders by ML
expressly for use therein; and to reimburse the Company, or any such director,
officer, Selling Shareholder or controlling person for any legal and other
expense reasonably incurred by the Company, or any such director, officer,
Selling Shareholder or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company and each of the Selling
Shareholders, hereby acknowledges that the only information that the
Underwriters have furnished to the Company and the Selling Shareholders
expressly for use in the Registration Statement, any Issuer Free Writing
Prospectus, any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or any Non-IFWP Road Show are the statements set forth in
the table in the first paragraph and as the paragraphs entitled “Price
Stabilization, Short Positions”, “Passive Market Making” and “Electronic Offer,
Sale and Distribution of Shares” under the caption “Underwriting” in the
Prospectus. The indemnity agreement set forth in this Section 8(b)
shall be in addition to any liabilities that each Underwriter may otherwise
have.
(d) Notifications and Other
Indemnification Procedures. 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 an indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof, but the
failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph (a), (b) or (c) 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), (b) or (c) above. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified,
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of such
indemnifying party’s election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (other than local counsel),
reasonably approved by the indemnifying party (or by ML in the case of Section
8(c)), representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying
party.
(e) Settlements. The indemnifying
party under this Section 8 shall not be liable for any settlement of any
proceeding effected without its written consent, which shall not be withheld
unreasonably, but if settled with such consent or if there is a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by Section 8(d) hereof, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent (x) includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such 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.
15
Section
9. Contribution. If the
indemnification provided for in Section 8 is for any reason unavailable to or
otherwise insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Selling
Shareholders, on the one hand, and the Underwriters, on the other hand, from the
offering of the Shares pursuant to this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholders, on the one hand, and the Underwriters, on the other hand,
in connection with the untrue statements or omissions or alleged untrue
statements or alleged omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Selling
Shareholders, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Shares pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Shares pursuant to this Agreement (before deducting
expenses) received by the Selling Shareholders, and the total underwriting
discount received by the Underwriters, in each case as set forth on the front
cover page of the Prospectus bear to the aggregate initial public offering price
of the Shares as set forth on such cover. The relative fault of the
Company and the Selling Shareholders, on the one hand, and the Underwriters, on
the other hand, shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Selling Shareholders, on the one hand, or the Underwriters, on
the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The
Company, the Selling Shareholders and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in this Section 9.
Section
10. Default of One
or More of the Several Underwriters. If, on the
Closing Date or a Subsequent Closing Date, as the case may be, any one or more
of the several Underwriters shall fail or refuse to purchase Shares that it or
they have agreed to purchase hereunder on such date, and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase does not exceed 10% of the aggregate number of the Shares to
be purchased on such date, the other Underwriters shall be obligated, severally,
in the proportions that the number of Firm Shares set forth opposite their
respective names on Schedule A bears to the aggregate number of Firm Shares set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as may be specified by ML with the consent of the
non-defaulting Underwriters, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, on the Closing Date or a Subsequent Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares and
the aggregate number of Shares with respect to which such default occurs exceeds
10% of the aggregate number of Shares to be purchased on such date, and
arrangements satisfactory to ML and the Selling Shareholders for the purchase of
such Shares are not made within 48 hours after such default, this Agreement
shall terminate without liability of any party to any other party except that
the provisions of Section 4, Section 6, Section 8 and Section 9 shall at all
times be effective and shall survive such termination. In any such
case either ML or the Selling Shareholders shall have the right to postpone the
Closing Date or a Subsequent Closing Date, as the case may be, but in no event
for longer than seven days in order that the required changes, if any, to the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected.
As used
in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any
action taken under this Section 10 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
Section
11. Termination of
this Agreement. Prior to the
Closing Date and, with respect to the Optional Shares, any Subsequent Closing
Date, this Agreement may be terminated by ML by notice given to the Company and
the Selling Shareholders if at any time (i) trading or quotation in any of the
Company’s securities shall have been suspended or limited by the Commission or
by the Nasdaq Stock Market, Inc. or trading in securities generally on the New
York Stock Exchange or the Nasdaq Stock Market, Inc. shall
have been suspended or limited, or minimum or maximum prices shall have been
generally established by the Commission or FINRA or on either such stock
exchange; (ii) a general banking moratorium shall have been declared by federal
or New York authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States has occurred;
or (iii) there shall have occurred any outbreak or escalation of national or
international hostilities or declaration of a national emergency or war by the
United States or any crisis or calamity, or any change in the United States or
international financial markets, or any substantial change or development
involving a prospective substantial change in United States’ or international
political, financial or economic conditions, as in the judgment of ML is
material and adverse and makes it impracticable or inadvisable to market the
Shares in the manner and on the terms described in the Prospectus or to enforce
contracts for the sale of securities. Any termination pursuant to
this Section 11 shall be without liability on the part of (a) the Company or the
Selling Shareholders to any Underwriter, except that the Selling Shareholders
shall be obligated to reimburse the expenses of the Representatives and the
Underwriters pursuant to Sections 4 and 6 hereof or (b) any Underwriter to the
Company or the Selling Shareholders.
16
Section 12. No Advisory or Fiduciary
Responsibility. Each of the Company and the Selling
Shareholders acknowledges and agrees that: (i) the purchase and sale
of the Securities pursuant to this Agreement, including the determination of the
public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Selling
Shareholders, on the one hand, and the several Underwriters, on the other hand,
and the Selling Shareholders are capable of evaluating and understanding and
understand and accept the terms, risks and conditions of the transactions
contemplated by this Agreement; (ii) in connection with each transaction
contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company, the Selling Shareholders or their respective
affiliates, shareholders, creditors or employees or any other party; (iii) no
Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company or the Selling Shareholders with respect
to any of the transactions contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company or the Selling Shareholders on other matters) and no Underwriter has
any obligation to the Company or the Selling Shareholders with respect to the
offering contemplated hereby except the obligations expressly set forth in this
Agreement; (iv) the several Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Company and the Selling Shareholders and that the several
Underwriters have no obligation to disclose any of such interests by virtue of
any advisory, agency or fiduciary relationship; and (v) the Underwriters have
not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company and the Selling Shareholders have
consulted their own legal, accounting, regulatory and tax advisors to the extent
they deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, the Selling Shareholders and the several
Underwriters, or any of them, with respect to the subject matter
hereof. The Company and the Selling Shareholders hereby waive and
release, to the fullest extent permitted by law, any claims that the Company and
the Selling Shareholders may have against the several Underwriters with respect
to any breach or alleged breach of agency or fiduciary duty.
Section
13. Research
Analyst Independence. The Company and the Selling Shareholders
acknowledge 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 views 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 their respective
investment banking divisions. The Company and the Selling
Shareholders hereby waive and release, to the fullest extent permitted by law,
any claims that the Company or the Selling Shareholders 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
advise communicated to the Company or the Selling Shareholders by such
Underwriters’ investment banking divisions. The Company and the
Selling Shareholders acknowledge 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 positions in debt or equity securities of the
companies that may be the subject of the transactions contemplated by this
Agreement.
Section
14. Representations
and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, of its officers, of the Selling Shareholders and of the several
Underwriters set forth in or made pursuant to this Agreement (i) will remain
operative and in full force and effect, regardless of any (A) investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the officers or employees of any Underwriter, or any person controlling the
Underwriter, the Company, the officers or employees of the Company, or any
person controlling the Company, any Selling Shareholder or any person
controlling such Selling Shareholder, as the case may be or (B) acceptance of
the Shares and payment for them hereunder and (ii) will survive delivery of and
payment for the Shares sold hereunder and any termination of this
Agreement.
Section
15. Notices. All
communications hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as follows:
If to ML
or to the Representatives:
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: Syndicate
Department
with a
copy to:
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ECM
Legal
17
If to the
Company:
Seneca
Foods Corporation
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
General Counsel
with a
copy to:
▇▇▇▇▇▇▇
Fleishmann & Mugel, LLP
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
If to the
Selling Shareholders:
▇▇▇▇
▇▇▇▇▇ Management Company LLC
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇
with a
copy to:
Weil,
Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Any party
hereto may change the address for receipt of communications by giving written
notice to the others.
Section
16. Successors and Assigns. This
Agreement will inure to the benefit of and be binding upon the parties hereto,
including any substitute Underwriters pursuant to Section 10 hereof, and to the
benefit of (i) the Company, its directors, any person who controls the Company
within the meaning of the Securities Act or the Exchange Act and any officer of
the Company who signs the Registration Statement, (ii) the Selling Shareholders,
(iii) the Underwriters, the officers, directors, employees and agents of the
Underwriters, and each person, if any, who controls any Underwriter within the
meaning of the Securities Act or the Exchange Act , and (iv) the respective
successors and assigns of any of the above, all as and to the
extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term
“successors and assigns” shall not include a purchaser of any of the Shares from
any of the several Underwriters merely because of such purchase.
18
Section
17. Partial
Unenforceability. The invalidity
or unenforceability of any Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Section, paragraph
or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there
shall be deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
Section
18. Governing Law
Provisions. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
(a) Consent to Jurisdiction. Any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby (“Related Proceedings”)
may be instituted in the federal courts of the United States of America located
in the City and County of New York, Borough of Manhattan, or the courts of the
State of New York in each case located in the City and County of New York,
Borough of Manhattan (collectively, the “Specified Courts”),
and each party irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such
court (a “Related
Judgment”), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. Service of any
process, summons, notice or document by mail to such party’s address set forth
above shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit,
action or other proceeding brought in any such court has been brought in an
inconvenient forum.
Section
19. Failure of One
or More of the Selling Shareholders to Sell and Deliver Shares. If one or more
of the Selling Shareholders shall fail to sell and deliver to the Underwriters
the Shares to be sold and delivered by such Selling Shareholders at the Closing
Date or any Subsequent Closing Date pursuant to this Agreement, then the
Underwriters may at their option, by written notice from ML to the Company and
the Selling Shareholders, either (i) terminate this Agreement without any
liability on the part of any Underwriter or, except as provided in Sections 4,
6, 8 and 9 hereof, the Company or the Selling Shareholders, or (ii) purchase the
shares which the Selling Shareholders have agreed to sell and deliver in
accordance with the terms hereof. If one or more of the Selling
Shareholders shall fail to sell and deliver to the Underwriters the Shares to be
sold and delivered by such Selling Shareholders pursuant to this Agreement at
the Closing Date or any Subsequent Closing Date, then the Underwriters shall
have the right, by written notice from ML to the Company and the Selling
Shareholders, to postpone the Closing Date or such Subsequent Closing Date, as
the case may be, but in no event for longer than seven days in order that the
required changes, if any, to the Registration Statement and the Prospectus or
any other documents or arrangements may be effected.
Section
20. General
Provisions. This Agreement
constitutes the entire agreement of the parties to this Agreement and supersedes
all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party whom the condition is meant to benefit. The
Section headings herein are for the convenience of the parties only and shall
not affect the construction or interpretation of this Agreement.
Each of
the parties hereto acknowledges that it is a sophisticated business person who
was adequately represented by counsel during negotiations regarding the
provisions hereof, including, without limitation, the indemnification provisions
of Section 8 and the contribution provisions of Section 9, and is fully informed
regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the
risks in light of the ability of the parties to investigate the Company, its
affairs and its business in order to assure that adequate disclosure has been
made in the Registration Statement, any preliminary prospectus and the
Prospectus (and any amendments and supplements thereto), as required by the
Securities Act and the Exchange Act.
19
If the
foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company and the Custodian the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
Seneca Foods
Corporation
|
|
By:
|
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
|
Name:▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Title:President and Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇ Strategic
Investments, L.P.
|
|
By: ▇▇▇▇
▇▇▇▇▇ Management Company, L.P., as General
Partner
|
|
|
By:
|
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇ |
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
|
Title:
General Partner
▇▇▇▇ ▇▇▇▇▇ Strategic
Investments III, L.P.
|
|
By: ▇▇▇▇
▇▇▇▇▇ Management Company, L.P., as General
Partner
|
|
|
By:
|
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇ |
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
|
Title:
General Partner
20
|
|
By:
|
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
Title:
Attorney-In-Fact
As
Attorney-In-Fact acting on behalf of the following Selling
Shareholders:
▇▇▇▇▇
▇▇▇▇▇ 2003-GRAT
▇▇▇▇▇
▇▇▇▇▇ 2009 CMS-GRAT
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
21
The
foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇
▇▇▇▇▇▇▇ & CO.
Acting as
Representatives of the
several
Underwriters named in
the
attached Schedule ▇.
|
|
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇,
Inc.
|
|
By:
|
/s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|
|
Managing
Director
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
|
|
By:
|
/s/▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Managing
Director
|
22
SCHEDULE
A
|
Underwriters
|
Number
of Firm Shares to be Purchased
|
|||
|
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇,
Inc.
|
2,123,144 | |||
|
▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co.
|
1,143,232 | |||
|
Total
|
3,266,376 | |||
|
|
SCHEDULE
B
|
Names
and Addresses
of Selling
Shareholders
|
Shares to be Sold | |||||||
|
Shares to be Sold
|
Shares to be Sold Pursuant to Over-allotment
Option
|
|||||||
|
▇▇▇▇
▇▇▇▇▇ Strategic Investments, L.P.
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
2,325,736 | − | ||||||
|
▇▇▇▇
▇▇▇▇▇ Strategic Investments III, L.P.
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
30,000 | − | ||||||
|
▇▇▇▇▇▇
▇. ▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
88,348 | 19,602 | ||||||
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
818 | 182 | ||||||
|
▇▇▇▇▇
▇▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
170,163 | 325,661 | ||||||
|
▇▇▇▇▇
▇▇▇▇▇ 2009 CMS-GRAT
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
224,496 | 49,808 | ||||||
|
▇▇▇▇▇
▇▇▇▇▇ 2003- GRAT
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
212,786 | 47,214 | ||||||
|
▇▇▇▇▇▇▇
▇▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
22,834 | 5,066 | ||||||
|
▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
88,348 | 19,602 | ||||||
|
▇▇▇▇▇▇▇▇
▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
40,921 | 9,079 | ||||||
|
▇▇▇▇▇
▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
22,915 | 5,085 | ||||||
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
23,734 | 5,266 | ||||||
|
▇▇▇▇▇
▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
1,636 | 364 | ||||||
|
▇▇▇▇▇▇▇
▇▇▇▇
c/o
▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
|
13,641 | 3,027 | ||||||
SCHEDULE
C
|
1.
|
Free
Writing Prospectus, dated July 15,
2009.
|
|
|
|
SCHEDULE
D
|
Per
Share Public Offering Price
|
$ | 22.00 | ||
|
Firm
Shares
|
3,266,376 |
|
|
|