UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report
(Date of earliest event reported): June 25, 2009
CLEAN
ENERGY FUELS CORP.
(Exact name of registrant as specified in
its charter)
Delaware
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001-33480
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33-0968580
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(State or other
jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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3020
Old Ranch Parkway, Suite 400, Seal Beach, California
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90740
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(Address of principal
executive offices)
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(Zip Code)
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Registrants telephone number, including
area code: (562) 493-2804
Not
Applicable
(Former name or former address, if
changed since last report.)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On June 25, 2009, Clean Energy Fuels Corp. (the Company) entered
into an underwriting agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated as representative of the underwriters named in Schedule A to
the underwriting agreement, relating to the public offering of 8,200,000 shares
of the Companys common stock, $0.0001 par value per share. The Company has granted to the underwriters an
option to purchase up to an additional 1,230,000 shares of common stock solely
for the purpose of covering overallotments.
The price to the public in this offering was $8.30 per share. The closing of the offering is expected to
occur on July 1, 2009. The material
terms of the offering are described in the prospectus supplement, dated June
25, 2009, as filed by the Company with the Securities and Exchange Commission
(the Commission). The offer and sale of the common stock is registered with the
Commission pursuant to a Registration Statement on Form S-3 filed by the
Company on July 11, 2008 (File No. 333-152306) and an additional Registration
Statement on Form S-3 filed by the Company on June 26, 2009 pursuant to Rule
462(b) under the Securities Act (File No. 333-160241).
The underwriting
agreement contains customary representations, warranties and agreements of the
Company and customary conditions to closing, indemnification rights,
obligations of the parties and termination provisions.
The underwriting
agreement is filed as Exhibit 1.1 hereto and incorporated herein by
reference, and the foregoing description of the terms of the underwriting
agreement is qualified in its entirety by reference to such exhibit.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
Exhibit
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Description
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1.1
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Underwriting Agreement,
dated June 25, 2009, among Clean Energy Fuels Corp., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and the Underwriters named in
Schedule A thereto
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5.1
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Opinion of Morrison
Foerster LLP
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23.1
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Consent of Morrison
Foerster LLP (included as part of Exhibit 5.1)
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99.1
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Press release issued by
Clean Energy Fuels Corp., dated June 26, 2009
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SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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CLEAN ENERGY FUELS CORP
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Dated: June 26,
2009
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By:
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/s/ Richard R. Wheeler
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Name: Richard R.
Wheeler
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Title: Chief Financial
Officer
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CLEAN
ENERGY FUELS CORP.
(a
Delaware corporation)
8,200,000
Shares of Common Stock
PURCHASE
AGREEMENT
Dated: June 25,
2009
CLEAN
ENERGY FUELS CORP.
(a
Delaware corporation)
8,200,000
Shares of Common Stock
(Par
Value $0.0001 Per Share)
PURCHASE
AGREEMENT
June 25,
2009
MERRILL
LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
LAZARD
CAPITAL MARKETS LLC
JANNEY
MONTGOMERY SCOTT LLC
CRAIG-HALLUM
CAPITAL GROUP LLC
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
as
Representative of the several Underwriters
c/o Merrill Lynch & Co.
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
One
Bryant Park
New
York, New York 10036
Ladies
and Gentlemen:
Clean Energy Fuels Corp., a Delaware corporation (the Company) confirms its agreement with Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (Merrill Lynch) and each of the other Underwriters named in Schedule
A hereto (collectively, the Underwriters,
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Merrill Lynch is acting as
representative (in such capacity, the Representative),
with respect to (i) the sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, par value $0.0001 per share, of the Company (Common Stock) set forth in Schedule A hereto (the Offering) and (ii) the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 1,230,000 additional shares of Common Stock to
cover overallotments, if any. The
aforesaid 8,200,000 shares of Common Stock (the Initial
Securities) to be purchased by the Underwriters and all or any part
of the 1,230,000 shares of Common Stock subject to the option described in Section 2(b) hereof
(the Option Securities) are hereinafter
called, collectively, the Securities.
The Company understands that the Underwriters propose
to make a public offering of the Securities as soon as the Representative deems
advisable after this purchase agreement (this Agreement)
has been executed and delivered.
SECTION 1. Representations and Warranties of the
Company.
The Company represents and warrants to each
Underwriter as of the date hereof, the Applicable Time referred to in Section 1(c) hereof
and as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b) hereof,
and agrees with each Underwriter, as follows:
(a) The Company has prepared and filed in
conformity with the requirements of the Securities Act of 1933, as amended (the
1933 Act), and the published rules and
regulations thereunder (the 1933 Act Regulations)
adopted by the Securities and Exchange Commission (the Commission)
a shelf Registration Statement (as hereinafter defined) on Form S-3
(File No. 333-152306), which became effective as of July 29, 2008
(the Effective Date), including a base
prospectus relating to the Securities (the Base
Prospectus), and such amendments and supplements thereto as may
have been required to the date of this Agreement. The term Registration Statement as used in this Agreement means the
registration statement (including all exhibits, financial schedules and all
documents and information deemed to be a part of the Registration Statement
pursuant to Rule 430B of the 1933 Act Regulations), as amended and/or
supplemented to the date of this Agreement, including the Base Prospectus. The Registration Statement is effective under
the 1933 Act and no stop order preventing or suspending the effectiveness of
the Registration Statement or suspending or preventing the use of the
Prospectus has been issued by the Commission and no proceedings for that
purpose have been instituted or, to the knowledge of the Company, are
threatened by the Commission. The
Company, if required by the 1933 Act Regulations of the Commission, will file
the Prospectus (as defined below), with the Commission pursuant to Rule 424(b) of
the 1933 Act Regulations. The term Prospectus as
used in this Agreement means the final prospectus in the form in which it is to
be filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations for use in connection with the Offering. Any preliminary prospectus
or prospectus subject to completion included in the Registration Statement or
filed with the Commission pursuant to Rule 424 of the 1933 Act Regulations
is hereafter called a Preliminary Prospectus.
Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the 1934 Act), and
the published rules and regulations thereunder (the 1934 Act
Regulations), on or before the last to occur of the Effective Date,
the date of the Preliminary Prospectus, or the date of the Prospectus, and any
reference herein to the terms amend, amendment, or supplement with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include (i) the filing of any
document under the 1934 Act after the Effective Date, the date of such
Preliminary Prospectus or the date of the Prospectus, as the case may be, which
is incorporated by reference, (ii) the filing of any document with the
Commission pursuant to Rule 424 under the 1933 Act Regulations after the
Effective Date, the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be, which is deemed to be a part thereof pursuant
to Rule 430B or Rule 430C under the 1933 Act Regulations, and (iii) in
each case any such document so filed and not modified or superseded pursuant to
Rule 412 under the 1933 Act Regulations. If the Company has filed an
abbreviated registration statement to register additional Securities pursuant
to Rule 462(b) under the 1933 Act Regulations (the 462(b) Registration Statement), then any reference
herein to the Registration Statement shall also be deemed to include such 462(b) Registration
Statement.
(b) The conditions to the use of Form S-3
in connection with the offering and sale of the Securities as contemplated
hereby have been satisfied. The Registration Statement meets, and the offering
and sale of the Securities as contemplated hereby complies with, the
requirements of Rule 415 of the 1933 Act Regulations (including, without
limitation, Rule 415(a)(4) and (a)(5) of the 1933 Act
Regulations).
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(c) As of the Applicable Time (as defined
below), neither (i) any General Use Free Writing Prospectus (as defined
below) issued at or prior to the Applicable Time, and the Pricing Prospectus
(as defined below) and the information included on Schedule B hereto,
all considered together (collectively, the General
Disclosure Package), (ii) any individual Limited Use Free
Writing Prospectus (as defined below) nor (iii) any bona fide electronic
road show (as defined in Rule 433(h)(5) of the 1933 Act Regulations)
that has been made available without restriction to any person, when considered
together with the General Disclosure Package, included or will include, any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from any Issuer Free Writing Prospectus (as defined
below), in reliance upon, and in conformity with, written information furnished
to the Company through the Representative by or on behalf of any Underwriter
specifically for inclusion therein.
As used in this paragraph (c) and elsewhere in
this Agreement:
Applicable Time means 7:00 AM, New York time, on June 26,
2009.
General Use Free Writing Prospectus means any Issuer Free
Writing Prospectus that is identified on Schedule E to this Agreement.
Issuer Free Writing Prospectus means any issuer free
writing prospectus, as defined in Rule 433 of the 1933 Act Regulations
relating to the Securities in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Companys
records pursuant to Rule 433(g) of the 1933 Act Regulations.
Limited Use Free Writing Prospectuses means any Issuer Free
Writing Prospectus that is not a General Use Free Writing Prospectus.
Pricing Prospectus means the Preliminary Prospectus, if
any, and the Base Prospectus, each as amended and supplemented immediately
prior to the Applicable Time, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof.
(d) No order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus relating to the Offering has been issued by the Commission, and no
proceeding for that purpose or pursuant to Section 8A of the 1933 Act has
been instituted or threatened by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects
to the requirements of the 1933 Act and the 1933 Act Regulations.
(e) At the respective times the
Registration Statement and any amendments thereto became effective, at each
deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of
the 1933 Act Regulations and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), each Registration Statement and any
amendments thereto conformed and will conform in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and the Prospectus and any amendments or supplements thereto,
at the time the Prospectus or any amendment or supplement thereto was issued
and at the Closing Time, conformed and will conform in all material respects to
the requirements of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however,
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that the foregoing representations and warranties in
this paragraph (e) shall not apply to information contained in or omitted
from the Registration Statement or the Prospectus, or any amendment or
supplement thereto, in reliance upon, and in conformity with, written
information furnished to the Company through the Representative by or on behalf
of any Underwriter specifically for inclusion therein. The Prospectus contains all required information
under the 1933 Act with respect to the Securities and the distribution of the
Securities.
(f) Each Issuer Free Writing Prospectus,
if any, as of its issue date and at all subsequent times through the completion
of the Offering or until any earlier date that the Company notified or notifies
Merrill Lynch as described in Section 3(e), did not, does not and will not
include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, Pricing Prospectus or the
Prospectus, including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof that has not been superseded
or modified, or include an untrue statement of a material fact or omits 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 foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus in reliance
upon, and in conformity with, written information furnished to the Company
through the Representative by or on behalf of any Underwriter specifically for
inclusion therein.
(g) The documents incorporated by
reference in the Prospectus, or at the time such documents became effective, as
applicable, complied, in all material respects, with the requirements of the
1934 Act or the 1933 Act, as the case may be, and the 1933 Act Regulations, and
did not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Prospectus,
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
1933 Act or the 1934 Act, as applicable, and the 1933 Act Regulations 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 not misleading.
(h) With respect to the Offering
contemplated hereby, the Company has not offered shares of its Common Stock or
any other securities convertible into or exchangeable or exercisable for shares
of Common Stock in a manner in violation of the 1933 Act; the Company has not
distributed any offering material in connection with the offer and sale of the
Securities, other than in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus (as defined below) and other materials
permitted by the 1933 Act.
(i) The Company is not an ineligible
issuer (as defined in Rule 405 of the 1933 Act Regulations) as of the
eligibility determination date for purposes of Rules 164 and 433 of the
1933 Act Regulations with respect to the offering of the Securities
contemplated by the Registration Statement.
The Company has not, directly or indirectly, distributed and will not
distribute any offering material in connection with the Offering other than any
Preliminary Prospectus, the Prospectus and other materials, if any, permitted
under the 1933 Act and consistent with Section 3(e) below. The Company will file with the Commission all
Issuer Free Writing Prospectuses (other than a road show, as described in Rule 433(d)(8) of
the 1933 Act Regulations), if any, in the time and manner required under Rules 163(b)(2) and
433(d) of the 1933 Act Regulations.
(j) The Company (i) has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the State of Delaware, having full corporate power and authority to
own or lease its properties and to conduct its business as described in the
Prospectus, together with any combination of one or more of the then issued
Permitted Free Writing Prospectuses, if any; and (ii) is
4
duly qualified to do business as a foreign corporation and is in good
standing in all other jurisdictions in which the character of the property
owned or leased or the nature of the business transacted by it makes
qualification necessary except for such jurisdictions where the failure to so
qualify, individually or in the aggregate, would not (A) have a material
adverse effect on the assets, properties, condition (financial or otherwise) or
in the earnings, results of operations, business affairs or business prospects
of the Company and its subsidiaries considered as a whole, whether or not in
the ordinary course of business, or (B) impair in any material respect the
ability of the Company to perform its obligations under this Agreement or to
consummate any transactions contemplated by this Agreement, the General
Disclosure Package or the Prospectus (any such effect as described in clauses (A) and
(B), a Material Adverse Effect). The Company and its subsidiaries have
employees located solely in Arizona, California, Colorado, Georgia, Maryland,
Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New
York, Ohio, Oklahoma, Rhode Island, Texas, Virginia, Washington, Canada and
Peru, and in no other jurisdiction, and is duly qualified to do business as a
foreign corporation and is in good standing in such jurisdictions, which are
the only jurisdictions where the Company is required to be so qualified. To the Companys knowledge, no proceeding has
been instituted in any such jurisdiction revoking, limiting or curtailing, or
seeking to revoke, limit or curtail, such power and authority or
qualification. Except for Canada and
Peru, the Company does not own, lease or license any asset or property outside
the United States of America. The Company owns or controls, directly or
indirectly, only the following corporations, partnerships, limited liability
partnerships, limited liability companies, associations or other entities:
Clean Energy Fueling Services Corp., a British Columbia company; Clean Energy,
a California corporation; Clean Energy Construction, a California corporation;
Clean Energy Finance, LLC, a California company; Blue Energy General, LLC, a
Delaware limited liability company; Blue Energy Limited, LLC, a Delaware
limited liability company; Clean Energy & Technologies LLC, a Delaware
limited liability company; Clean Energy LNG, LLC, a Delaware limited liability
company; Clean Energy Texas LNG, LLC, a Texas limited liability company; Blue
Fuels Group, LP, a Texas limited partnership; DFW Airport CNG Partnership, LLP,
a Texas limited liability partnership; TranStar Energy Company, LP, a Texas
limited partnership; Natural Fuels Company LLC, a Colorado limited liability
company; Natural/Peoples LLC, a Wyoming limited liability company;
Natural/Total Limited Liability Company, a Wyoming limited liability company;
Dallas Clean Energy, LLC, a Delaware limited liability company; and CE Fueling
Oklahoma LLC, an Oklahoma limited liability company. Each of Clean Energy, Clean Energy
Construction, Clean Energy Finance, LLC, Clean Energy LNG, LLC, Clean Energy
Texas LNG, LLC, and Dallas Clean Energy, LLC (collectively, the Material Subsidiaries) has been duly organized and is
validly existing as a corporation, limited liability company or partnership, as
applicable and in good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be.
Additionally, each Material Subsidiary has corporate, limited liability
company or partnership, as applicable, power and authority to own, lease and
operate its properties and to conduct its business as described in the General
Disclosure Package and the Prospectus and is duly qualified as a foreign
corporation, limited liability company or partnership, as applicable, 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 where the failure to so qualify or
to be in good standing would not result in a Material Adverse Effect.
(k) All necessary corporate action has
been duly and validly taken by the Company to authorize the execution, delivery
and performance of this Agreement and the issuance and sale of the Securities
by the Company. This Agreement has been
duly and validly authorized, executed and delivered by the Company and constitutes
a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors rights generally and by
general equitable principles.
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(l) The Securities, when issued and
delivered against payment therefor as provided herein and in the Prospectus
will be duly and validly issued, fully paid and non-assessable and free of any
preemptive or similar rights and will conform to the description thereof
contained in the General Disclosure Package and the Prospectus. To the Companys knowledge, no holder of the
Securities will be subject to personal liability by reason of being such a
holder.
(m) The Company has the duly authorized
and validly issued outstanding capitalization as of March 31, 2009, as set
forth in the Companys quarterly report on Form 10-Q for the three months
ended March 31, 2009. The
certificates evidencing the shares of Common Stock and other securities of the
Company are in due and proper legal form and have been duly authorized for
issuance by the Company, except that some certificates do not contain the
legend required by Section 151(f) of the General Corporation Law of
Delaware. All of the issued and
outstanding shares of Common Stock have been duly and validly issued and fully
paid and nonassessable. All of the
issued and outstanding shares of capital stock of the Company were issued in
transactions that were either registered under the 1933 Act, or exempt from the
registration requirements of the 1933 Act, without violation of preemptive
rights, rights of first refusal or similar rights. Except as disclosed in, or incorporated by
reference into, the Registration Statement or the Prospectus, there are no
statutory preemptive or other similar rights to subscribe for or to purchase or
acquire any shares of Common Stock of the Company or any of its subsidiaries or
any such rights pursuant to its Certificate of Incorporation or by-laws or any
agreement or instrument to or by which the Company or any of its subsidiaries
is a party or bound other than any that do not apply to the issuance and sale
of the Securities pursuant to this Agreement and that will expire at the date
hereof. The Securities to be issued and
sold by the Company pursuant to this Agreement, when issued and sold against
payment therefor pursuant to this Agreement, will be duly authorized and
validly issued, fully paid and nonassessable and none of them will be issued in
violation of any preemptive or other similar right. Except as disclosed in, or incorporated by
reference into, the Prospectus, there is no outstanding option, warrant or
other right calling for the issuance of, and there is no commitment, plan or
arrangement to issue, any share of stock of the Company or any of its
subsidiaries or any security convertible into, or exercisable or exchangeable
for, such stock. The securities of the
Company conform to the descriptions thereof contained in, or incorporated by
reference into, the Registration Statement and the Prospectus. All outstanding shares of capital stock of
each of the Companys subsidiaries have been duly authorized and validly
issued, and are fully paid and nonassessable and are owned directly by the
Company or by another wholly-owned subsidiary of the Company free and clear of
any security interests, liens, encumbrances, equities or claims, other than
those described in, or incorporated by reference into, the Registration
Statement and the Prospectus.
(n) All the outstanding shares of capital
stock of each significant subsidiary within the meaning of Rule 1-02(w) of
Regulation S-X (such a significant subsidiary of the Company, a Significant Subsidiary) of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and, except to
the extent set forth in the General Disclosure Package and the Prospectus, are
owned by the Company directly or indirectly through one or more wholly-owned
subsidiaries, free and clear of any claim, lien, encumbrance, security
interest, restriction upon voting or transfer or any other claim of any third
party.
(o) The execution, delivery and
performance of this Agreement by the Company, the issue and sale of the
Securities by the Company and the consummation of the transactions contemplated
hereby will not (with or without notice or lapse of time or both) give rise to
a right to terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of time or both
would constitute a default) under, or require any consent or waiver under, or
result in the execution or imposition of any lien, charge or encumbrance upon
any properties or assets of the Company or its subsidiaries pursuant to the
terms of, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of
6
its subsidiaries is a party or by which either the Company or its
subsidiaries or any of their properties or businesses is bound, or any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation applicable to the Company or any of its subsidiaries or violate any
provision of the charter or by-laws of the Company or any of its subsidiaries,
except for (i) such consents or waivers which have already been obtained
and are in full force and effect, (ii) any such termination or
acceleration right, conflict, breach, default, lien or violation that would
not, individually or in the aggregate, have a Material Adverse Effect or (iii) except
as may be required by the Financial Industry Regulatory Authority, Inc. (FINRA) or state securities or Blue Sky laws in connection
with the offer and sale of the Securities.
(p) Except for the registration of the
Securities under the 1933 Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the 1934 Act and
applicable state or foreign securities laws, FINRA and the Nasdaq Global Market
(Nasdaq GM) in connection with the
offering and sale by the Company of the Securities and the listing of the
Common Stock on the Nasdaq GM, no consent, approval, authorization or order of,
or filing, qualification or registration (each an Authorization)
with, any court, governmental or non-governmental agency or body, foreign or
domestic, which has not been made, obtained or taken and is not in full force
and effect, is required for the execution, delivery and performance of this
Agreement by the Company, the offer or sale of the Securities or the
consummation of the transactions contemplated hereby; and no event has occurred
that allows or results in, or after notice or lapse of time or both would allow
or result in, revocation, suspension, termination or invalidation of any such
Authorization or any other impairment of the rights of the holder or maker of
any such Authorization. All corporate
approvals (including those of stockholders) necessary for the Company to
consummate the transactions contemplated by this Agreement have been obtained
and are in effect.
(q) KPMG LLP, who have certified certain
financial statements and related schedules included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus, is an independent registered public accounting firm as required by
the 1933 Act and the 1933 Act Regulations and the Public Company Accounting
Oversight Board (United States) (the PCAOB). Except as disclosed in the Registration
Statement and as pre-approved in accordance with the requirements set forth in Section 10A
of the 1934 Act, KPMG LLP has not been engaged by the Company to perform any prohibited
activities (as defined in Section 10A of the 1934 Act).
(r) The financial statements of the
Company, together with the related notes and schedules, included or
incorporated by reference in the General Disclosure Package, the Prospectus and
in the Registration Statement, and any financial statements required by Rule 3-05
and Article 11 of Regulation S-X, included in or incorporated by reference
in the Registration Statement and the Prospectus filed with the Commission
present fairly in all material respects the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders equity and comprehensive income (loss) and cash flows
of the Company and its consolidated subsidiaries for the periods specified; and
such financial statements and related schedules and notes thereto, and the
unaudited financial information filed with the Commission as part of or
incorporated by reference into the Registration Statement and the Prospectus,
have been prepared in conformity with generally accepted accounting principles
in the United States (GAAP),
consistently applied throughout the periods involved except as disclosed in the
notes thereto. The selected financial
data included in or incorporated by reference in the Registration Statement and
the Prospectus present fairly in all material respects the information shown
therein as at the respective dates and for the respective periods specified and
have been presented on a basis consistent with the consolidated
financial statements set forth in the Registration Statement and the Prospectus
and other financial information. All disclosures
contained in the
Registration Statement, the General Disclosure
Package and the Prospectus, when considered together, regarding non-GAAP
financial measures (as such term is defined by the rules and regulations
7
of the Commission) comply with Regulation G under the
1934 Act and Item 10 of Regulation S-K of the 1933 Act Regulations, to the
extent applicable.
(s) Neither the Company nor any of its
subsidiaries has sustained, since the date of the latest audited financial
statements included or incorporated by reference in the General Disclosure
Package, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the General Disclosure Package;
and, since such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, or any Material
Adverse Effect, otherwise than as set forth in the General Disclosure Package.
(t) Except as disclosed in, or
incorporated by reference into, the Registration Statement and the Prospectus,
there is no action, suit, claim, proceeding or investigation pending or, to the
Companys knowledge, threatened against the Company or its subsidiaries before
or by any court, regulatory body or administrative agency or any other
governmental agency or body, domestic or foreign, that (i) questions the
validity of the capital stock of the Company or this Agreement or any action
taken or to be taken by the Company pursuant to or in connection with this
Agreement; (ii) is required to be disclosed in, or incorporated by
reference into, the Registration Statement, the General Disclosure Package and
the Prospectus and is not disclosed or incorporated by reference (and such
proceedings, if any, as are summarized in the Registration Statement, the
General Disclosure and the Prospectus, are accurately summarized in all
material respects) or (iii) may have a Material Adverse Effect.
(u) Neither the Company nor any of its
subsidiaries (i) is in violation of its charter or by-laws (or analogous
governing instrument, as applicable), (ii) is in default in any respect,
and no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject or (iii) is
in violation in any respect of any law, ordinance, governmental rule,
regulation or court order, decree or judgment to which it or its property or
assets may be subject except, in the case of clauses (i) through (iii) of
this paragraph (u), for any violations or defaults which, singularly or in the
aggregate, would not have a Material Adverse Effect.
(v) Except as disclosed in, or
incorporated by reference into, the Registration Statement or the Prospectus,
the Company and each of its subsidiaries has all requisite corporate, limited
liability company or partnership, as applicable, power and authority, and all
necessary authorizations, approvals, consents, orders, licenses, certificates
and permits of and from all governmental or regulatory bodies or any other
person or entity (collectively, the Permits), to
own, lease and license its assets and properties and conduct its business, all
of which are valid and in full force and effect, except where the lack of such
Permits, individually or in the aggregate, would not have a Material Adverse
Effect. The Company and each of its subsidiaries has fulfilled and performed in
all material respects all of its material obligations with respect to such Permits
and no event has occurred that allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the Company thereunder except, in each such case,
where such revocation, termination or impairment would not have a Material
Adverse Effect. Except as may be
required under the 1933 Act and state and foreign Blue Sky laws and the
Regulations of FINRA, no other Permits are required for the Company to enter
into, deliver and perform this Agreement and to issue and sell the Securities
to be issued and sold by it hereunder.
Neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such Permits
which, singularly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
8
(w) The Company is not and, after giving
effect to the offering and sale of the Securities and the application of
proceeds from the sale of the Securities as described in the Registration
Statement, the General Disclosure Package and the Prospectus, will not be an investment
company within the meaning of the Investment Company Act of 1940, as amended.
(x) Neither the Company nor any of its
subsidiaries, or any of their respective officers, directors or affiliates has
taken or will take, directly or indirectly, any action designed or intended to
stabilize or manipulate the price of any security of the Company, or which
caused or resulted in, or which might in the future reasonably be expected to
cause or result in, stabilization or manipulation of the price of any security
of the Company.
(y) Except as disclosed in, or
incorporated by reference into, the Registration Statement or the Prospectus,
the Company and each of its subsidiaries owns or possesses legally enforceable
rights to use all patents, patent rights, patent applications, inventions,
trademarks, trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, domain names, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and proprietary
knowledge (collectively, Intellectual Property)
necessary for the conduct of its business; and such patents have been (i) duly
and properly filed or caused to be filed with the United States Patent and
Trademark Office and any applicable foreign and international patent
authorities and (ii) any assignments for all patents and patent
applications owned by or licensed to the Company or its subsidiaries that are
material to the conduct of the business of the Company or its subsidiaries in
the manner in which it has been or is contemplated to be conducted have been
properly executed and recorded for each named inventor. Neither the Company nor any of its
subsidiaries has knowledge of or has received any notice of any (i) infringement,
misappropriation or violation by third parties of any such Intellectual
Property or (ii) any threatened action, suit, proceeding or claim by
others challenging the Company or its subsidiaries rights in or to any such
Intellectual Property. The Intellectual
Property owned by the Company and its subsidiaries has not been adjudged
invalid or unenforceable, in whole or in part, and there is no pending or, to
the Companys knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property. There is no pending or, to the Companys
knowledge, threatened action, suit, proceeding or claim by others against the
Company or any of its subsidiaries that the Company or any of its subsidiaries
infringes, misappropriates or otherwise violates any Intellectual Property or
other proprietary rights of others. To
the Companys knowledge, no employee of the Company or any of its subsidiaries
is the subject of any claim or proceeding involving a violation of any term of
any employment contract, patent disclosure agreement, invention assignment
agreement, non-competition agreement, non-solicitation agreement, nondisclosure
agreement or any restrictive covenant to or with a former employer where the
basis of such violation relates to such employees employment with the Company
or any of the Companys subsidiaries or actions undertaken by the employee
while employed with the Company or any of the Companys subsidiaries.
(z) To the knowledge of the Company, no
third party is engaging in any activity that infringes, misappropriates or
otherwise violates any patent, trademark, service mark, trade name, copyright,
trade secret, license, know-how or any other intellectual property right or
franchise right owned by or licensed to the Company or its subsidiaries, except
as described in the General Disclosure Package and the Prospectus and except
for such activities that, singularly or in the aggregate, would not have a
Material Adverse Effect.
(aa) With respect to each material agreement
governing all rights in and to any patent, trademark, service mark, trade name,
copyright, trade secret, license, know-how or any other intellectual property
right or franchise right licensed by or licensed to the Company or its subsidiaries:
(i) neither the Company nor its subsidiaries has received any notice of
indemnification, termination or cancellation
9
under such agreement, received any notice of breach or default under
such agreement, which breach has not been cured, or granted to any third party
any rights, adverse or otherwise, under such agreement that would constitute a
material breach of such agreement; and (ii) none of the Company, its
subsidiaries nor, to the knowledge of the Company, any other party to such
agreement, is in breach or default thereof in any material respect, and no
event has occurred that, with notice or lapse of time, would constitute such a
material breach or default or permit termination, modification or acceleration
under such agreement.
(bb) Except as disclosed in, or incorporated
by reference into, the Registration Statement, the General Disclosure Package
or Prospectus, the Company and each of its subsidiaries has good and
indefeasible title in fee simple to all real property, and good and
indefeasible title to all other property owned by it, in each case free and
clear of all liens, encumbrances, claims, security interests and defects,
except such as do not materially 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 and its subsidiaries. All
property held under lease or sublease by the Company and its subsidiaries is
held by them under valid, existing and enforceable leases or subleases, as
applicable, free and clear of all liens, encumbrances, claims, security
interests and defects, except such as would not have a Material Adverse
Effect. Neither the Company nor any
subsidiary has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any subsidiary under
any of the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(cc) Subsequent to the respective dates as
of which information is given in the Prospectus, neither the Company nor its
subsidiaries has (A) issued any securities, except for issuance pursuant
to this Agreement or pursuant to reservations, agreements or employee benefit
plans referred to in, or incorporated by reference into, the Registration
Statement or the Prospectus or upon the conversion or exercise of convertible
securities, options or warrants referred to in, or incorporated by reference
into, the Registration Statement or Prospectus, or incurred any liability or
obligation, direct or contingent, for borrowed money, except such liabilities
or obligations incurred in the ordinary course of business, (B) entered
into any transaction not in the ordinary course of business that is material to
the Company, (C) declared or paid any dividend or made any distribution on
any shares of its stock or redeemed, purchased or otherwise acquired or agreed
to redeem, purchase or otherwise acquire any shares of its capital stock, or (D) experienced
a Material Adverse Effect.
(dd) Neither the Company nor any of its
subsidiaries is involved in any labor dispute nor, to the knowledge of the
Company, is any such dispute threatened, which dispute would have a Material
Adverse Effect. To the Companys
knowledge there is no existing or imminent labor disturbance by the employees
of any of its principal suppliers or contractors which would have a Material
Adverse Effect. There is no threatened
or to the Companys knowledge, any pending litigation between the Company or
its subsidiaries and any of its executive officers which, if adversely
determined, could have a Material Adverse Effect and the Company has no reason
to believe that such officers will not remain in the employment of the Company.
(ee) The Company has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the U.S. Employee Retirement Income Security Act of 1974 (ERISA)
and the regulations and published interpretations thereunder with respect to
each plan as defined in Section 3(3) of ERISA and such regulations
and published interpretations in which its employees are eligible to
participate and each such plan is in compliance in all material respects with
the presently applicable provisions of ERISA and such regulations and published
interpretations. No Reportable Event (as defined in 12 ERISA) has occurred
with respect to any Pension Plan (as defined in ERISA) for which the Company
could have any liability.
10
(ff) (i) Each of the Company and each of its
subsidiaries is in compliance with all rules, laws and regulation relating to
the use, treatment, storage and disposal of toxic substances and protection of
health or the environment (Environmental Laws)
which are applicable to its business, except where a failure to comply would
not have a Material Adverse Effect; (ii) neither the Company nor its
subsidiaries has received any notice from any governmental authority or third
party of an asserted claim under Environmental Laws, except such claims that
would not result in a Material Adverse Effect; (iii) each of the Company
and each of its subsidiaries has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business and is in compliance with all terms and conditions of any such permit,
license or approval, except where a failure to comply would not have a Material
Adverse Effect; (iv) except as disclosed in, or incorporated by reference
into, the Registration Statement, the General Disclosure Package or Prospectus,
to the Companys knowledge, no facts currently exist that will require the
Company or any of its subsidiaries to make future material capital expenditures
to comply with Environmental Laws; and (v) no property which is or has
been owned, leased or occupied by the Company or its subsidiaries has been
designated as a Superfund site pursuant to the Comprehensive Environmental
Response, Compensation of Liability Act of 1980, as amended (42 U.S.C. Section 9601,
et. seq.) (CERCLA) or otherwise designated
as a contaminated site under applicable state or local law, except where such
designation would not result in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has been named as a potentially responsible party under
CERCLA. In the ordinary course of its
business, the Company periodically reviews the effect of Environmental Laws on
the business, operations and properties of the Company and its subsidiaries, in
the course of which the Company identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, have a Material Adverse Effect.
(gg) The Company and each of its subsidiaries has filed all
federal, state, local and foreign tax returns which are required to be filed
through the date hereof, except in such jurisdictions where the failure to file
would not have a Material Adverse Effect, which returns are true and correct in
all material respects, or has received timely extensions thereof, and has paid
all taxes shown on such returns and all assessments received by it to the
extent that the same are material and have become due. The Company and its subsidiaries have not
engaged in any transaction which is a corporate tax shelter or which could be
characterized as such by the Internal Revenue Service or any other taxing
authority. The accruals and reserves on
the books and records of the Company and its subsidiaries in respect of tax
liabilities for any taxable period not yet finally determined are adequate to
meet any assessments and related liabilities for any such period, and since December 31,
2008, neither the Company nor any of its subsidiaries has incurred any
liability for taxes other than in the ordinary course.
(hh) The Company and its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are generally deemed customary in the businesses in
which they are engaged or propose to engage after giving effect to the
transactions described in the Prospectus, all of which insurance is in full
force and effect. The Company and each
of its subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and neither the Company nor any
subsidiary of the Company has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has been denied any material insurance policy or coverage for
which it has applied. Neither the
Company nor any of its subsidiaries insure risk of loss through any captive
insurance, risk retention group, reciprocal group or by means of any fund or
pool of assets specifically set aside for contingent liabilities other than as
described in the General Disclosure Package.
11
(ii) The Company and each of its subsidiaries maintains a
system of internal control over financial reporting (as such term is defined in
Rule 13a-15 of the 1934 Act Regulations) that complies with the
requirements of the 1934 Act and has been designed by the Companys principal
executive officer and principal financial officer, or under their supervision,
to provide reasonable assurances that (i) transactions are executed in
accordance with managements general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with managements general or specific
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The
Company reasonably expects that its internal control over financial reporting
will be effective at the time it files with the Commission the first management
report required by Item 308 of Regulation S-K.
Except as described in the General Disclosure Package, since the end of
the Companys most recent audited fiscal year, there has been (A) no
material weakness in the Companys internal control over financial reporting
(whether or not remediated) and (B) no change in the Companys internal
control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Companys internal control over financial
reporting. The Companys internal
control over financial reporting is overseen by the Audit Committee of the
Board of Directors of the Company (the Audit Committee)
in accordance with the 1934 Act Regulations.
The Company has not publicly disclosed or reported to the Audit
Committee or to the Board of Directors, and within the next 90 days the Company
does not reasonably expect to publicly disclose or report to the Audit
Committee or the Board of Directors, a significant deficiency, material
weakness, change in internal control over financial reporting or fraud
involving management or other employees who have a significant role in the
internal control over financial reporting (each an Internal
Control Event), any violation of, or failure to comply with, the
U.S. securities laws, or any matter which, if determined adversely, would have
a Material Adverse Effect.
(jj) A member of the Audit Committee has confirmed to the
Chief Executive Officer, Chief Financial Officer or General Counsel of the
Company that, except as set forth in the General Disclosure Package, the Audit
Committee is not reviewing or investigating, and neither the Companys
independent auditors nor its internal auditors have recommended that the Audit
Committee review or investigate, (i) adding to, deleting, changing the application
of or changing the Companys disclosure with respect to, any of the Companys
material accounting policies, (ii) any matter which could result in a
restatement of the Companys financial statements for any annual or interim
period during the current or prior three fiscal years, or (iii) any
Internal Control Event.
(kk) The minute books of the Company and each of its
subsidiaries that would be a Significant Subsidiary have been made available
upon request to the Underwriters and counsel for the Underwriters, and such
books (i) contain a complete summary of all meetings and actions of the
board of directors (including each committee of the Board of Directors) and
stockholders of the Company (or analogous governing bodies and interest
holders, as applicable), and each of its Significant Subsidiaries since the
time of their respective incorporation or organization through at least the
date of the latest of such meeting and action, provided that the summary of the
latest of such meeting or action may consist of notes in draft form, and (ii) accurately
in all material respects reflect all transactions referred to in such minutes.
(ll) There is no document, contract or other agreement
required to be described in the Registration Statement, the General Disclosure
Package or the Prospectus or to be filed as an exhibit to, or incorporated by
reference into, the Registration Statement that is not described or filed as
required by the 1933 Act. Each
description of a contract, document or other agreement in the Registration
Statement,
12
the General Disclosure Package and the Prospectus
accurately reflects in all material respects the terms of the underlying
contract, document or other agreement.
Except as disclosed in, or incorporated by reference into, the
Registration Statement, the General Disclosure Package or Prospectus, each
contract, document or other agreement described in the Registration Statement,
the General Disclosure Package or the Prospectus or listed as an exhibit to a
document incorporated by reference is in full force and effect and is valid and
enforceable by and against the Company or its subsidiaries, as the case may be,
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
relating to the enforcement of creditors rights generally, and general
equitable principles relating to the availability of remedies, and except as
rights of indemnity or contribution may be limited by federal or state
securities laws and the public policy underlying such laws. Neither the Company nor any of its
subsidiaries, if a subsidiary is a party, nor to the Companys knowledge, any
other party is in default in the observance or performance of any term or
obligation to be performed by it under any such agreement, and no event has
occurred which with notice or lapse of time or both would constitute such a
default, in any such case which default or event, individually or in the
aggregate, would have a Material Adverse Effect. No default exists, and no event has occurred
which with notice or lapse of time or both would constitute a default, in the
due performance and observance of any term, covenant or condition, by the Company
or a subsidiary, if a subsidiary is a party thereto, of any other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or its properties or business or a subsidiary or the
subsidiarys properties or business may be bound or affected which default or
event, individually or in the aggregate, would have a Material Adverse Effect.
(mm) No relationship, direct or indirect, exists between or
among the Company or its subsidiaries, on the one hand, and the current or
prior directors, officers, stockholders, customers or suppliers of the Company
and its subsidiaries, on the other hand, which is required to be described in,
or incorporated by reference into, the General Disclosure Package and the
Prospectus that is not so described, or so incorporated.
(nn) No person has the right to subscribe for securities of
the Company, exercise any preemptive rights or to require the Company or any of
its subsidiaries to register any securities for sale under the 1933 Act by
reason of the filing of the Registration Statement with the Commission or the
issuance and sale of the Securities, other than such rights as have been duly
and validly waived or complied with and except as otherwise disclosed in the
Registration Statement or the Prospectus.
(oo) The Company is in compliance with all applicable
corporate governance requirements set forth in the Nasdaq Marketplace Rules that
are then in effect and is actively taking steps to ensure that it will be in
compliance with other applicable corporate governance requirements set forth in
the Nasdaq Marketplace Rules not currently in effect upon and all times
after the effectiveness of such requirements.
(pp) None of the Company nor, to the knowledge of the
Company, any other person associated with or acting on behalf of the Company
including, without limitation, any director, officer, agent or employee of the
Company or its subsidiaries, has, directly or indirectly, while acting on
behalf of the Company or any of its subsidiaries (i) used any corporate
funds for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; (iii) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made
any other unlawful payment.
13
(qq) Neither the Company nor any of its
subsidiaries owns any margin securities as that term is defined in Regulation
U of the Board of Governors of the Federal Reserve System (the Federal Reserve Board), and none of the proceeds of the
sale of the Securities will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin security, for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or carry
any margin security or for any other purpose which might cause any of the
Securities to be considered a purpose credit within the meanings of
Regulations T, U or X of the Federal Reserve Board.
(rr) Other than any contracts or agreements
between the Company and the Underwriters, neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding with any
person that would give rise to a valid claim against the Company or the
Underwriters for a brokerage commission, finders fee or like payment in
connection with the offering and sale of the Securities or any transaction
contemplated by this Agreement, the Registration Statement, the General
Disclosure Package or the Prospectus.
(ss) No forward-looking statement (within the
meaning of Section 27A of the 1933 Act and Section 21E of the 1934
Act) contained in either the General Disclosure Package or the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(tt) The Company is subject to and in
compliance in all material respects with the reporting requirements of Section 13
and Section 15(d) of the 1934 Act.
The Common Stock is registered pursuant to Section 12(b) of
the 1934 Act and is listed on the Nasdaq GM.
The Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the 1934 Act
or the listing of the Common Stock on the Nasdaq GM, nor has the Company
received any notification that the Commission or the Nasdaq GM is contemplating
terminating such registration or listing.
The Securities to be sold hereunder will have been (prior to the date
that the first shares are sold pursuant to the terms of this Agreement),
approved for listing, subject only to official notice of issuance, on the
Nasdaq GM.
(uu) The Company maintains disclosure
controls and procedures (as defined in Rule 13a-15(e) of the 1934
Act Regulations) to ensure that material information relating to the Company is
made known to the Companys management, including its principal executive officer
and principal financial officer or persons performing similar functions, as
appropriate to allow timely decisions regarding required disclosure; the
Company is otherwise in compliance in all material respects with all applicable
effective provisions of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act) and is actively taking steps to ensure
that it will be in compliance with other applicable provisions of the
Sarbanes-Oxley Act upon the effectiveness of such provisions.
(vv) There are no transactions, arrangements
or other relationships between and/or among the Company, any of its affiliates
(as such term is defined in Rule 405 of the 1933 Act Regulations) and any
unconsolidated entity, including, but not limited to, any structured finance,
special purpose or limited purpose entity that could reasonably be expected to
materially affect the Companys liquidity or the availability of or
requirements for their capital resources required to be described in the
General Disclosure Package and the Prospectus or a document incorporated by
reference therein, which have not been described as required.
(ww) The Company does not, directly or
indirectly, including through any subsidiary, have any outstanding personal
loans or other credit extended to or for any of its directors or executive
officers.
(xx) The statistical and market related data
included in, or incorporated by reference into, the Registration Statement, the
General Disclosure Package or the Prospectus, are based on or derived from
sources that the Company believes to be reliable and accurate.
14
(yy) Neither the Company nor any subsidiary nor any of
their affiliates (within the meaning of Conduct Rule 2720(b)(1)(a) of the
National Association of Securities Dealers, Inc. (the NASD)) directly or indirectly controls, is controlled by,
or is under common control with, or is an associated person (within the meaning
of Article I, Section 1(ee) of the By-Laws of FINRA) of, any member
firm of FINRA.
(zz) No approval of the stockholders of the Company under
the Nasdaq Listing Rules is required for the Company to issue and deliver
to the Underwriters the Securities, including such as may be required pursuant
to Rule 5635 of the Nasdaq Listing Rules.
(aaa) The parties hereto agree and understand that the
content of any and all road shows (as defined in Rule 433 of the 1933
Act Regulations) related to the offering of the Securities contemplated hereby
is solely the property of the Company.
(bbb) 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 USA PATRIOT Act, the money
laundering statutes of all jurisdictions to which it is subject, the 1933 Act
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
knowledge of the Company, threatened.
(ccc) 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.
Any certificate signed by any officer of the Company or any of its subsidiaries
delivered to the Representative or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis
of the representations and warranties herein contained and subject to the terms
and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price per share set forth
in Schedule D, that proportion of the number of Initial Securities set
forth in Schedule C opposite the name of the Company, which the number
of Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of Section 10
hereof, bears to the total number of Initial Securities, subject, in each case,
to such adjustments among the Underwriters as the Representative in its sole
discretion shall make to eliminate any sales or purchases of fractional
securities.
15
(b) Option Securities. In addition,
on the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, severally and not jointly, to purchase up to an
additional 1,230,000 shares of Common Stock, as set forth in Schedule C,
at the price per share set forth in Schedule D, less an amount per share
equal to any dividends or distributions declared by the Company and payable on
the Initial Securities but not payable on the Option Securities. The option hereby granted will expire
30 days after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering overallotments which may be
made in connection with the offering and distribution of the Initial Securities
upon notice by Merrill Lynch to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a Date of Delivery) shall be determined by Merrill Lynch, but
shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter
defined. If the option is exercised as
to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of Option Securities then being purchased which the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities, subject in each case to such
adjustments as Merrill Lynch in its discretion shall make to eliminate any
sales or purchases of fractional shares.
(c) Payment. Payment of the
purchase price for, and delivery of certificates for, the Initial Securities
shall be made at the offices of Morrison & Foerster LLP, 425 Market
Street, San Francisco, California 94105, or at such other place as shall be
agreed upon by the Representative and the Company, at 10:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern
time) on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not
later than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery
being herein called Closing Time).
In addition, in the event that any or all of the
Option Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, such Option Securities shall be
made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representative and the Company, on each Date of Delivery as
specified in the notice from the Representative to the Company.
Payment shall be made to the Company by wire transfer
of immediately available funds to a bank account designated by the Company
against delivery to the Representative for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial Securities and the
Option Securities, if any, which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration.
Certificates for the Initial Securities and the Option Securities, if
any, shall be in such denominations and registered in such names as the
Representative may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The certificates for the Initial Securities
and the Option Securities, if any, will be made available for examination and
packaging by the Representative in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
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SECTION 3. Covenants of the Company. The Company covenants with each Underwriter
as follows:
(a) Compliance with Securities
Regulations and Commission Requests; Payment of Filing Fees.
The Company, subject to Section 3(b), will comply with the
requirements of Rule 430B and will notify the Representative immediately,
and confirm the notice in writing, (i) when any post-effective amendment
to the Registration Statement or new registration statement relating to the
Securities shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or the filing of a new registration
statement or any amendment or supplement to the Prospectus or any document
incorporated by reference therein or otherwise deemed to be a part thereof or
for additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or such
new registration statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes or of any examination
pursuant to Section 8(e) of the 1933 Act concerning the Registration
Statement and (v) if the Company becomes the subject of a proceeding under
Section 8A of the 1933 Act in connection with the offering of the
Securities. The Company will effect the
filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)),
and will take such steps as it deems necessary to ascertain promptly whether
the form of prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments and 1934 Act
Documents. The Company will give the Representative
notice of its intention to file or prepare any amendment to the Registration
Statement or new registration statement relating to the Securities or any
amendment, supplement or revision to either any preliminary prospectus
(including any prospectus included in the Registration Statement or amendment
thereto at the time it became effective) or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, and the Company will furnish the Representative
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which the Representative or counsel for the Underwriters shall
object. The Company has given the
Representative notice of any filings made pursuant to the 1934 Act or 1934 Act
Regulations within 48 hours prior to the execution of this Agreement; the
Company will give the Representative notice of its intention to make any such
filing from the execution of this Agreement to the Closing Time and will
furnish the Representative with copies of any such documents a reasonable
amount of time prior to such proposed filing and will not file or use any such
document to which the Representative or counsel for the Underwriters shall
object.
(c) Delivery of Registration
Statements. The Company has furnished or will deliver
upon request to the Representative and counsel for the Underwriters, without
charge, signed copies of the Original Registration Statement and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein or otherwise deemed to be a part thereof) and signed copies of
all consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the Registration Statement
and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
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(d) Delivery of Prospectuses.
The Company has delivered to each Underwriter, without charge, as many
copies of each preliminary prospectus as such Underwriter reasonably requested,
and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company
will furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and
any amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with
Securities Laws. The Company will comply with the 1933 Act and
the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of the Securities as contemplated in
this Agreement and in the Prospectus. If
at any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or to file a new registration
statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b),
such amendment, supplement or new registration statement as may be necessary to
correct such statement or omission or to comply with such requirements, the
Company will use its best efforts to have such amendment or new registration
statement declared effective as soon as practicable (if it is not an automatic
shelf registration statement with respect to the Securities) and the Company
will furnish to the Underwriters such number of copies of such amendment,
supplement or new registration statement as the Underwriters may reasonably
request. 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 (or any other registration statement relating to the Securities) or
the Pricing Prospectus or any preliminary prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances prevailing at that subsequent time, not misleading,
the Company will promptly notify Merrill Lynch and will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission. If the General Disclosure Package is being
used to solicit offers to buy the Securities at a time when the Prospectus is
not yet available to prospective purchasers and any event shall occur as a
result of which, in the judgment of the Company or in the reasonable opinion of
the Representative, it becomes necessary to amend or supplement the General
Disclosure Package in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, or to make the statements
therein not conflict with the information contained or incorporated by
reference in the Registration Statement then on file and not superseded or
modified, or if it is necessary at any time to amend or supplement the General
Disclosure Package to comply with any law, the
18
Company promptly will either (i) prepare, file with the Commission
(if required) and furnish to the Underwriters and any dealers an appropriate
amendment or supplement to the General Disclosure Package or (ii) prepare
and file with the Commission an appropriate filing under the 1934 Act which
shall be incorporated by reference in the General Disclosure Package so that
the General Disclosure Package as so amended or supplemented will not, in the
light of the circumstances then prevailing, be misleading or conflict with the
Registration Statement then on file, or so that the General Disclosure Package
will comply with law.
(f) Blue Sky Qualifications.
The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as the Representative may designate and to maintain such
qualifications in effect for a period of not less than one year from the date
hereof; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(g) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to its security holders as
soon as practicable an earnings statement for the purposes of, and to provide
to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(h) Use of Proceeds.
The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the General Disclosure Package and
the Prospectus under Use of Proceeds.
(i) Listing.
The Company will use its best efforts to effect the listing of the
Securities on the Nasdaq GM.
(j) Restriction on Sale of
Securities. During a period of 60 days from the date of
the Prospectus, the Company will not, without the prior written consent of
Merrill Lynch, (i) directly or indirectly, offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be sold hereunder,
(B) any shares of Common Stock issued by the Company upon the exercise of
an option or warrant or the conversion of a security outstanding on the date
hereof and referred to in the General Disclosure Package and the Prospectus, (C) any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
General Disclosure Package and the Prospectus or (D) any shares of Common
Stock issued pursuant to any non-employee director stock plan.
(k) Reporting Requirements.
The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
19
(l) Issuer Free Writing Prospectuses. The Company represents and agrees that,
unless it obtains the prior consent of the Representative, and each Underwriter
represents and agrees that, unless it obtains the prior consent of the Company
and the Representative, it has not made and will not make any offer relating to
the Securities that would constitute an issuer free writing prospectus, as defined
in Rule 433 of the 1933 Act Regulations, or that would otherwise
constitute a free writing prospectus, as defined in Rule 405 of the 1933
Act Regulations, required to be filed with the Commission. Any such free writing prospectus consented to
by the Representative or by the Company and the Representative, as the case may
be, is hereinafter referred to as a Permitted Free Writing Prospectus. The Company represents that it has treated or
agrees that it will treat each Permitted Free Writing Prospectus as an issuer
free writing prospectus, as defined in Rule 433 of the 1933 Act
Regulations, and has complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including timely filing
with the Commission where required, legending and record keeping.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company
will pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the Companys counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
supplement thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Permitted Free Writing Prospectus
and of the Prospectus and any amendments or supplements thereto and any costs
associated with electronic delivery of any of the foregoing by the Underwriters
to investors, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the
fees and expenses of any transfer agent or registrar for the Securities, (ix) the
costs and expenses of the Company relating to investor presentations on any road
show undertaken in connection with the marketing of the Securities, including
without limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations, travel and lodging expenses of the representatives
and officers of the Company and any such consultants, and the cost of aircraft
and other transportation chartered in connection with the road show and (x) the
filing fees incident to any review by FINRA of the terms of the sale of the
Securities and (xi) the fees and expenses incurred in connection with the
listing of the Securities on the Nasdaq GM.
(b) Termination of Agreement.
If this Agreement is terminated by the Representative in accordance with
the provisions of Section 5, Section 9(a)(i) or Section 11
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses actually incurred, including the reasonable fees and
disbursements of counsel for the Underwriters.
(c) Allocation of Expenses.
The provisions of this Section shall not affect any agreement that
the Company may make for the sharing of such costs and expenses.
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SECTION 5.
Conditions of Underwriters Obligations. The obligations of the several Underwriters
hereunder are subject to the accuracy of the representations and warranties of
the Company contained in Section 1 hereof or in certificates of any
officer of the Company or any subsidiary of the Company delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration
Statement; Filing of Prospectus; Payment of Filing Fee.
The Registration Statement has become effective and at Closing Time no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefore initiated or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
A prospectus containing the Rule 430B Information shall have been
filed with the Commission in the manner and within the time period required by Rule 424(b) without
reliance on Rule 424(b)(8) (or a post-effective amendment providing
such information shall have been filed and become effective in accordance with
the requirements of Rule 430B).
(b) Opinion of Counsel for Company.
At Closing Time, the Representative shall have received the favorable
opinion, dated as of Closing Time, of Morrison & Foerster, LLP,
counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters substantially to the effect set forth in Exhibit A
hereto and to such further effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of Counsel for
Underwriters. At Closing Time, the Representative shall
have received the favorable opinion, dated as of Closing Time, of Baker Botts
L.L.P., counsel for the Underwriters, together with signed or reproduced copies
of such letter for each of the other Underwriters in form and substance
reasonably satisfactory to the Underwriters.
(d) Officers Certificate.
At Closing Time, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Prospectus
or the General Disclosure Package, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are pending
or, to their knowledge, contemplated by the Commission.
(e) Accountants Comfort Letter.
At the time of the execution of this Agreement, the Representative shall
have received from KPMG LLP a letter dated such date, in form and substance
satisfactory to the Representative, together with signed or reproduced copies
of such letter for each of the other Underwriters, containing statements and
information of the type ordinarily included in accountants comfort letters
to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that the cut-off date for the procedures performed by such accountants
and described in such letter shall be a date not more than five days prior to
the date of such letter.
21
(f) Bring-down Comfort Letter.
At Closing Time, the Representative shall have received from KPMG LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the date referred to in the proviso in Section 5(e) hereof
shall be a date not more than three business days prior to Closing Time.
(g) Approval of Listing.
At Closing Time, the Securities shall have been approved for listing on
the Nasdaq GM, subject only to official notice of issuance.
(h) No Objection.
If required by the regulations of FINRA, FINRA has confirmed that it has
not raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements as described in the Pricing Prospectus.
(i) Lock-up Agreements.
At the date of this Agreement, the Representative shall have received an
agreement substantially in the form of Exhibit C hereto signed by
the persons listed on Schedule F hereto.
(j) Conditions to Purchase of Option
Securities. In the event that the Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by
the Company and any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Representative shall have received:
(i) Officers Certificate.
A certificate, dated such Date of Delivery, of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such
Date of Delivery.
(ii) Opinion of Counsel for Company.
The favorable opinion of Morrison & Foerster, LLP, counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters.
The favorable opinion of Baker Botts L.L.P., counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(iv) Bring-down
Comfort Letter. A letter from KPMG LLP, in form and substance
satisfactory to the Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representative pursuant to Section 5(f) hereof, except that the date
in the proviso in Section 5(e) hereof shall be a date not more than
five days prior to such Date of Delivery.
(k) Additional Documents.
At Closing Time and at each Date of Delivery counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Representative and counsel
for the Underwriters.
22
(l) Termination of Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case
of any condition to the purchase of Option Securities on a Date of Delivery
which is after the Closing Time, the obligations of the several Underwriters to
purchase the relevant Option Securities, may be terminated by the
Representative by notice to the Company at any time at or prior to Closing Time
or such Date of Delivery, as the case may be, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters.
The Company agrees to indemnify and hold harmless each Underwriter, its
affiliates, as such term is defined in Rule 501(b) of the 1933 Act
Regulations (each, an Affiliate),
its selling agents, directors, officers, employees and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule 430B
Information, 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 arising out of any untrue statement or alleged untrue statement
of a material fact included in any preliminary prospectus, any Issuer Free
Writing Prospectus or the Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill Lynch),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or asserted, based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Merrill Lynch
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430B Information, or any preliminary prospectus, any
Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto).
23
(b) Indemnification of Company,
Directors and Officers. Each Underwriter severally
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 6,
as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto), including the Rule 430B Information or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such Underwriter through
Merrill Lynch expressly for use therein.
(c) Actions Against Parties;
Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by Merrill Lynch, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section 7
hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Settlement Without Consent if
Failure to Reimburse. Notwithstanding the foregoing, 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 this Section 6, the indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of such request and (ii) such
indemnifying party shall not have reimbursed the indemnifying party in
accordance with such request prior to the date of such settlement, unless such
failure to reimburse the indemnified party is based on a dispute with a good
faith basis as to either the obligation of such indemnifying party arising
under this Section 6 to indemnify the indemnified party or the amount of
such obligation and such indemnifying party shall have notified the indemnified
party of such good faith dispute prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as
is appropriate to reflect the relative benefits
24
received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other hand in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover of the Prospectus bear to the aggregate
initial public offering price of the Securities as set forth on the cover of
the Prospectus.
The relative fault of the Company 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 by the Underwriters and the parties
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 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 which does not
take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7,
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act and each Underwriters Affiliates
and selling agents shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
number of Initial Securities set forth opposite their respective names in Schedule
A hereto and not joint.
25
SECTION 8. Representations, Warranties and Agreements
to Survive. All representations,
warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto,
shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or its Affiliates or
selling agents, any person controlling any Underwriter, its officers or
directors or any person controlling the Company and (ii) delivery of and
payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General.
The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus (exclusive of any supplement
thereto) or General Disclosure Package, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the Representative, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the Nasdaq GM, or if
trading generally on the American Stock Exchange, the New York Stock Exchange
or the NASDAQ Stock Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices
have been required, by any of said exchanges or by such system or by order of
the Commission, any other governmental authority or FINRA, or (iv) a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, or (v) if a banking moratorium
has been declared by any state or federal authority.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail
at Closing Time or a Date of Delivery to purchase the Securities which it or
they are obligated to purchase under this Agreement (the Defaulted
Securities), the Representative shall have the right, within
24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representative shall
not have completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities
does not exceed 10% of the number of Securities to be purchased on such date,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities
exceeds 10% of the number of Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs after the
Closing Time, the obligation of the Underwriters to purchase and of the Company
to sell the Option Securities to be purchased and sold on such Date of Delivery
shall terminate without liability on the part of any non-defaulting
Underwriter.
26
No action taken pursuant to this Section 10 shall
relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result
in a termination of this Agreement or, in the case of a Date of Delivery which
is after the Closing Time, which does not result in a termination of the
obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either (i) the Representative or (ii) the
Company shall have the right to postpone Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As
used herein, the term Underwriter includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Default by the Company. If the
Company shall fail at Closing Time or at the Date of Delivery to sell the
number of Securities that it is obligated to sell hereunder, then this
Agreement shall terminate without any liability on the part of any
nondefaulting party; provided, however, that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect. No action taken pursuant to this Section 11
shall relieve the Company from liability, if any, in respect of such default.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed
to the Representative at One Bryant Park, New York, New York 10036, Attention:
Syndicate Department (Facsimile: 646-855-3073), with a copy to One Bryant Park,
New York, New York 10036, Attention: ECM Legal (Facsimile: 212-230-8730); and
notices to the Company shall be directed to it at 3020 Old Ranch Parkway, Suite 400,
Seal Beach, California 90740, attention of Harrison Clay, Esq.
SECTION 13. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) 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 arms-length commercial transaction between
the Company, on the one hand, and the several Underwriters, on the other hand, (b) in
connection with the offering contemplated hereby and the process leading to
such transaction each Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, or its stockholders, creditors,
employees or any other party, (c) no Underwriter has assumed or will
assume an advisory or fiduciary responsibility in favor of the Company with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement, (d) the Underwriters and their
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of each of the Company, and (e) the
Underwriters have not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby and the Company has consulted
its own respective legal, accounting, regulatory and tax advisors to the extent
it deemed appropriate.
SECTION 14. Integration. This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Company and
the Underwriters, or any of them, with respect to the subject matter hereof.
SECTION 15. Parties. This Agreement shall each inure to the
benefit of and be binding upon the Underwriters, the Company and their
respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, the Company and their
respective successors and the controlling persons and officers and
27
directors referred to in Sections 6 and 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters, the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 16. Trial by Jury. The Company
(on its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. The parties hereby consent to (i) nonexclusive
jurisdiction in the courts of the State of New York located in the City and
County of New York or in the United States District Court for the Southern
District of New York, (ii) nonexclusive personal service with respect
thereto, and (iii) personal jurisdiction, service and venue in any court
in which any claim arising out of or in any way relating to this Agreement is
brought by any third party against the Underwriters or any indemnified
party. Each of the parties (on its
behalf and, to the extent permitted by applicable law, on behalf of its limited
partners and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. The parties agree that a final judgment in any
such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding upon the parties and may be enforced in any other courts
to the jurisdiction of which the parties is or may be subject, by suit upon
such judgment.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 18. TIME. TIME SHALL BE OF THE ESSENCE OF
THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 19. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
SECTION 20. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 21. Amendments. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
28
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in
accordance with its terms.
|
Very truly yours,
|
|
|
|
CLEAN ENERGY FUELS
CORP.
|
|
|
|
|
By:
|
/s/ Richard R. Wheeler
|
|
|
Name: Richard R.
Wheeler
|
|
|
Title: Chief Financial Officer
|
CONFIRMED AND ACCEPTED,
|
|
as of the date first
above written:
|
|
|
|
|
|
MERRILL
LYNCH & CO.
|
|
MERRILL LYNCH, PIERCE,
FENNER & SMITH
|
|
INCORPORATED
|
|
|
|
|
|
|
|
By:
|
/s/ Partho Sanyal
|
|
|
Name: Partho Sanyal
|
|
|
Title: Director
|
|
|
|
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For itself and as Representative of the other
Underwriters named in Schedule A hereto.
|
|
Signature Page to
Purchase Agreement
SCHEDULE
A
Name of Underwriter
|
|
Number of
Initial
Securities
|
|
|
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
5,740,000
|
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Lazard Capital Markets LLC
|
|
820,000
|
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Janney Montgomery Scott LLC
|
|
820,000
|
|
Craig-Hallum Capital Group LLC
|
|
820,000
|
|
Total
|
|
8,200,000
|
|
SCHEDULE
B
1. The initial public offering price per
share for the Securities is $8.30.
2. The number of shares of the Initial
Securities purchased by the Underwriters is 8,200,000.
SCHEDULE
C
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|
Number of Initial
Securities to be Sold
|
|
Maximum Number of Option
Securities to Be Sold
|
|
CLEAN ENERGY FUELS CORP.
|
|
8,200,000
|
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1,230,000
|
|
|
|
|
|
|
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Total
|
|
8,200,000
|
|
1,230,000
|
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SCHEDULE
D
CLEAN
ENERGY FUELS CORP.
8,200,000 Shares of Common Stock
(Par Value $0.0001 Per Share)
1. The
initial public offering price per share for the Securities, determined as
provided in said Section 2, shall be $8.30.
2. The
purchase price per share for the Securities to be paid by the several
Underwriters shall be $7.802, being an amount equal to the initial public
offering price set forth above less $0.498 per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the overallotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial Securities but not payable on the
Option Securities.
SCHEDULE
E
1. The free
writing prospectus filed with the Commission by the Company on June 23,
2009 (File No. 333-152306).
2. The free
writing prospectus filed with the Commission by the Company on June 24,
2009 (File No. 333-152306).
SCHEDULE
F
Andrew
J. Littlefair
John
S. Herrington
Boone
Pickens
Mitchell
W. Pratt
Barclay
F. Corbus
James
N. Harger
Warren
I. Mitchell
Richard
R. Wheeler
Kenneth
M. Socha
James
C Miller III
Vincent
C. Taormina
Exhibit 5.1
|
425
MARKET STREET
SAN
FRANCISCO
CALIFORNIA
94105-2482
TELEPHONE:
415.268.7000
FACSIMILE:
415.268.7522
WWW.MOFO.COM
|
MORRISON &
FOERSTER LLP
NEW
YORK, SAN FRANCISCO,
LOS
ANGELES, PALO ALTO,
SAN
DIEGO, WASHINGTON, D.C.
DENVER,
NORTHERN VIRGINIA,
SACRAMENTO,
WALNUT CREEK
TOKYO,
LONDON, BEIJING, SHANGHAI, HONG KONG, SINGAPORE, BRUSSELS
|
June
25, 2009
Clean
Energy Fuels Corp.
3020
Old Ranch Parkway, Suite 400
Seal
Beach, CA 90740
Re: 8,463,170
Shares of Common Stock of Clean Energy Fuels Corp.
Ladies
and Gentlemen:
This opinion is furnished
to Clean Energy Fuels Corp., a Delaware Corporation (the Company), in
connection with the sale by the Company of up to 8,463,170 shares of the
Companys Common Stock, par value $0.0001 per share (the Shares),
pursuant to a Registration Statement on Form S-3 (File No. 333-152306)
originally filed with the Securities and Exchange Commission (the Commission)
under the Securities Act of 1933, as amended (the Act) on July 11,
2008 (the Registration Statement) and the related prospectus included
therein (the Prospectus) and the prospectus supplement to be filed
with the Commission pursuant to Rule 424(b) promulgated under the Act
(the Prospectus Supplement). All of the Shares are to be sold by the Company as
described in the Registration Statement and the related Prospectus and
Prospectus Supplement.
In connection with this
opinion, we have examined the Companys Restated Certificate of Incorporation,
and the Companys By-laws, both as currently in effect, such other records of
the corporate proceedings of the Company and certificates of the Companys
officers as we have deemed relevant, the Registration Statement and the
exhibits thereto, and the related Prospectus and Prospectus Supplement. In addition, we have
examined such records, documents, certificates of public officials and the
Company, made such inquiries of officials of the Company and considered such
questions of law as we have deemed necessary for the purpose of rendering the
opinion set forth herein. In such examination, we have assumed the
genuineness of all signatures and the authenticity of all items submitted to us
as originals and the conformity with originals of all items submitted to us as
copies.
Based upon, subject to and limited by the foregoing, we are of the opinion that the Shares have been duly and validly authorized and upon issuance, delivery and payment therefor in the manner contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement, will be validly issued, fully paid and nonassessable.
We express no opinion as to matters governed by any laws other than the Delaware General Corporation Law in effect on the date hereof.
We
hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to reference to us under the caption Legal Matters in the Prospectus Supplement. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.
Very truly yours,
/s/ Morrison &
Foerster LLP
Exhibit
99.1
3020 Old Ranch
Parkway, Suite 400
Seal Beach,
California 90740 USA
562.493.2804 fax: 562.546.0097
www.cleanenergyfuels.com
For
Immediate Release
Clean Energy Fuels Prices Follow-On Public
Offering
Of Common Stock
Seal
Beach, Calif., June 26, 2009, Clean Energy Fuels Corp.
(Nasdaq: CLNE) today announced the pricing of its follow-on public offering of
8,200,000 shares of common stock at a public offering price of $8.30 per
share. The Company has granted the
underwriters a 30-day option from the date of the final prospectus supplement
to purchase up to 1,230,000 additional shares of its common stock to cover
overallotments, if any. The offering is
expected to close on July 1, 2009, subject to customary closing
conditions.
Clean Energy intends to use the
net proceeds from the offering, after deducting underwriting discounts and
Clean Energys expenses related to the offering, for working capital and other
general corporate purposes, which may include capital expenditures related to
station construction activities, investment in its LNG plants and biomethane
production plant or future acquisitions of natural gas fueling infrastructure,
vehicle or services businesses and biomethane production assets.
Merrill Lynch & Co. is
acting as sole book-running manager for the offering. Lazard Capital Markets, Janney Montgomery
Scott and Craig-Hallum Capital Group are acting as co-managers.
The offering is being made under the Companys
shelf registration statement filed with and declared effective by the
Securities and Exchange Commission (SEC). The offering is being made only by
means of a prospectus, filed with the SEC.
Prospective investors should read the prospectus supplement and the
shelf registration statement for more complete information about Clean Energy
and the offering. Copies of the prospectus supplement and the accompanying
prospectus may be obtained by visiting EDGAR on the SECs Web site at
http://www.sec.gov or by contacting Merrill Lynch & Co., 4 World
Financial Center, New York, NY 10080, Attention: Prospectus Department, or at
212.449.1000; Lazard Capital Markets at 212.632.6717; Janney Montgomery Scott
at 617.557.2971; and Craig-Hallum Capital Group at 612.334.6357.
This press release does not
constitute a solicitation of an offer to buy, or an offer to sell, shares of
common stock, nor will there be any sale of these securities in any state or
jurisdiction in which such an offer, solicitation or sale would be unlawful
prior to registration or qualification of the shares under the securities laws
of any such state or jurisdiction.
About Clean Energy Fuels
Clean Energy is the leading
provider of natural gas (CNG and LNG) for transportation in North America. It
has a broad customer base in the refuse, transit, ports, shuttle, taxi,
trucking, airport and municipal fleet markets, fueling more than 17,200
vehicles at 184 strategic locations across the U.S. and Canada. Clean Energy
owns and operates two LNG production plants, one in Willis, Texas and one in
Boron Calif., with combined capacity of 260,000 LNG gallons per day and
designed to expand to 340,000 LNG gallons per day as demand increases. It also
owns and operates a landfill gas processing facility in Dallas that produces
renewable biomethane gas for delivery in the nations gas pipeline network.
Safe Harbor Statement
This
press release contains forward-looking statements within the meaning of federal
securities laws. Clean Energy cautions you that any statements contained in
this press release that are not strictly historical statements constitute
forward-looking statements. Such forward-looking statements include, but are
not limited to, those related to: statements regarding the offering and the use
of the net proceeds from the offering. These forward-looking statements are
neither promises nor guarantees and involve risks and uncertainties that could
cause actual results to differ materially from such forward-looking statements.
Factors that could cause actual events to differ materially from those
predicted in such forward-looking statements include market conditions and
customary closing conditions. Additional factors that could cause actual events
to differ from those predicted in such forward-looking statements are
identified in the prospectus supplement and Clean Energys other filings with
the SEC that are incorporated by reference into the prospectus supplement,
including its Annual Report on Form 10-K for the fiscal year ended December 31,
2008 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2009, each of which is filed with the SEC (copies of which may be obtained at
the SECs website at: http://www.sec.gov).
Readers should not place undue reliance on any such forward-looking
statements, which speak only as of the date they are made. Clean Energy
disclaims any obligation to publicly update or revise any such statements to
reflect any change in its expectations, or in events, conditions or
circumstances on which any such statements may be based, or that may affect the
likelihood that actual results will differ from those set forth in the
forward-looking statements, except as required by law.
Contacts
Investors
Ina McGuinness, 310/954-1100
News Media
Bruce Russell, 310/559-4955
x101
brussell@cleanenergyfuels.com
# # #