Unassociated Document
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):
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March
30, 2010
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Hudson
Highland Group,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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0-50129
|
59-3547281
|
(State
or other
jurisdiction
of
incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
560
Lexington
Avenue, New
York, New York 10022
(Address
of principal executive offices, including zip code)
(212)
351-7300
(Registrant’s
telephone number, including area code)
_______________________
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:
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))
|
Public
Offering
On March 30, 2010, Hudson Highland
Group, Inc. (the “Company”) entered into an underwriting agreement (the
“Underwriting Agreement”) by and between the Company and Robert W. Baird &
Co. Incorporated (the “Underwriter”). Pursuant to the Underwriting
Agreement, the Company agreed to sell and the Underwriter agreed to purchase for
resale to the public (the “Public Offering”), subject to the terms and
conditions expressed therein, 4,200,000 shares of the Company’s common stock at
a price per share of $4.35 to the public, less an underwriting discount of $0.26
per share. The Underwriter also has an option for 30 days to purchase
up to 630,000 additional shares of the Company’s common stock at the same price
per share to cover any over-allotments. The Public Offering is
subject to customary closing conditions and is expected to close on April 6,
2010. The foregoing description of the Underwriting Agreement does
not purport to be complete and is qualified in its entirety by reference to the
full text of the Underwriting Agreement, a copy of which is filed herewith as
Exhibit 1.1 and is incorporated herein by reference.
The common stock to be sold pursuant to
the Underwriting Agreement was registered pursuant to an effective shelf
Registration Statement on Form S-3 (Registration No. 333-163605) that the
Company filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended. In connection with the Company filing with
the Securities and Exchange Commission a prospectus supplement, dated March 30,
2010 (the “Prospectus Supplement”), and prospectus, dated December 18, 2009,
relating to the Public Offering described above, the Company is filing Exhibits
5.1 and 23.1 hereto and as part of such Registration Statement an opinion and
consent of Foley & Lardner LLP, legal counsel to the Company, issued to the
Company as to the validity of the shares of the Company’s common stock being
offered in the Public Offering.
On March 31, 2010, the Company also
issued a press release announcing the pricing of the Public
Offering. The Company is filing a copy of such press release as
Exhibit 99.1 hereto, which is incorporated by reference herein.
Recent
Developments
In connection with the Public Offering,
the Company made the following disclosure in the Prospectus
Supplement:
“We are
seeing strong revenue recovery trends in the first quarter of 2010 in the United
Kingdom and China and in the United States legal practice compared to the same
period last year. We continue to benefit from the restructuring
actions we took in 2009.
We expect
our major markets – the United Kingdom, the United States legal practice,
Australia/New Zealand, China, the Netherlands and Belgium – to deliver positive
operating performance for the first quarter of 2010. We expect our
consolidated revenue to be in the range of $173 million to $179 million for the
first quarter of 2010, an increase of 5% to 8% compared to the same period last
year.”
Item
9.01. Financial Statements and
Exhibits.
(a) Not
applicable.
(b) Not
applicable.
(c) Not
applicable.
(d) Exhibits. The
following exhibits are being filed herewith:
|
(1.1)
|
Underwriting
Agreement, dated March 30, 2010, by and between Hudson Highland Group,
Inc. and Robert W. Baird & Co.
Incorporated.
|
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(5.1)
|
Opinion
of Foley & Lardner LLP, dated March 30, 2010.
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|
|
|
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(23.1)
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Consent
of Foley & Lardner LLP (contained in Exhibit 5.1
hereto).
|
|
|
|
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(99.1)
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Press
Release of Hudson Highland Group, Inc. dated March 31,
2010.
|
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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HUDSON HIGHLAND GROUP,
INC. |
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|
|
|
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Date: March
31, 2010
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By:
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/s/ Mary
Jane Raymond |
|
|
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Mary
Jane Raymond |
|
|
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Executive
Vice President and Chief
Financial Officer |
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|
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HUDSON
HIGHLAND GROUP, INC.
Exhibit
Index to Current Report on Form 8-K
Exhibit
Number
(1.1)
|
Underwriting
Agreement, dated March 30, 2010, by and between Hudson Highland Group,
Inc. and Robert W. Baird & Co. Incorporated.
|
|
|
(5.1) |
Opinion
of Foley & Lardner LLP, dated March 30, 2010. |
|
|
(23.1) |
Consent
of Foley & Lardner LLP (contained in Exhibit 5.1 hereto). |
|
|
(99.1) |
Press
Release of Hudson Highland Group, Inc. dated March 31, 2010. |
|
|
-5-
Unassociated Document
4,200,000
Shares
HUDSON
HIGHLAND GROUP, INC.
COMMON
STOCK (PAR VALUE $.001 PER SHARE)
UNDERWRITING
AGREEMENT
March 30,
2010
March 30,
2010
ROBERT W.
BAIRD & CO. INCORPORATED
c/o Robert W. Baird & Co. Incorporated
227 West
Monroe Street
Suite
2100
Chicago,
IL 60606
Ladies
and Gentlemen:
Hudson
Highland Group, Inc., a Delaware corporation (the “Company”), proposes to issue
and sell to the Underwriter named in Schedule I hereto (the “Underwriter”) 4,200,000 shares
of the common stock, par value $.001 per share, of the Company (the “Firm Shares”).
The
Company also proposes to issue and sell to the Underwriter up to an additional
630,000 shares of the common stock, par value $.001 per share, of the Company
(the “Additional
Shares”), if and to the extent that the Underwriter shall have determined
to exercise its right to purchase such shares of common stock granted to the
Underwriter in Section 2 hereof. The Firm Shares and the
Additional Shares, together with the related preferred share purchase
rights, are hereinafter collectively referred to as the “Shares.” The shares of the
common stock, par value $.001 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby, together with the related
preferred share purchase rights, are hereinafter referred to as the
“Common
Stock.”
The
Company has prepared and filed, in accordance with the Securities Act of 1933,
as amended (the “Securities
Act”), and the rules and regulations thereunder, with the Securities and
Exchange Commission (the “Commission”) a registration
statement on Form S-3 (Registration No. 333-163605), including a prospectus,
relating to the Shares, which registration statement and prospectus incorporate
or are deemed to incorporate by reference documents that the Company has filed,
or will file, with the Commission in accordance with the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and the rules
and regulations thereunder. The registration statement as amended at the time it
becomes effective for purposes of Section 11 of the Securities Act (as such
section applies to the Underwriter), including the documents filed as part
thereof and information contained or incorporated by reference in the prospectus
or otherwise deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act,
is hereinafter referred to as the “Registration
Statement.” The Company has also filed with, or transmitted
for filing to, or shall promptly after the date of this Agreement file with or
transmit for filing to, the Commission a prospectus supplement (in the form
first used to confirm sales of the Shares (or in the form first made available
to the Underwriter by the Company to meet requests of purchasers pursuant to
Rule 173 under the Securities Act), the “Prospectus Supplement”)
pursuant to Rule 424 under the Securities Act. The term “Base Prospectus” means the
prospectus, dated December 9, 2009, relating to the Shares, in the form in which
it has most recently been filed with the Commission as part of the Registration
Statement on or prior to the date of this Agreement. The term “Prospectus” means the Base
Prospectus as supplemented by the Prospectus Supplement. The term “Preliminary Prospectus” means
any preliminary form of Prospectus (including without limitation the preliminary
Prospectus Supplement, dated March 30, 2010, filed with the Commission pursuant
to Rule 424).
For
purposes of this Agreement, “free writing prospectus” has
the meaning set forth in Rule 405 under the Securities Act; “Time of Sale Prospectus” means
the Base Prospectus and the Preliminary Prospectus, if any, together with the
free writing prospectuses, if any, each identified in Schedule II hereto (each,
a “Permitted Free Writing
Prospectus”), and other information conveyed to purchasers of the Shares
at or prior to the Time of Sale as set forth in Schedule II hereto; “Time of Sale” means 5:00 p.m.
(Central Time) on the date of this Agreement; and “road show” has the meaning set
forth in Rule 433(h)(4) under the Securities Act. As used herein, the
terms “Registration Statement,” “Base Prospectus,” “Preliminary Prospectus,”
“Time of Sale Prospectus” and “Prospectus” shall include the documents, if any,
deemed to be incorporated by reference therein, including, unless the context
otherwise requires, the documents, if any, filed as exhibits to such
incorporated documents. The terms “supplement,” “amendment” and
“amend” as used herein with respect to the Registration Statement, the Base
Prospectus, the Time of Sale Prospectus, any Preliminary Prospectus, the
Prospectus or any free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Exchange
Act that are deemed to be incorporated by reference therein.
1. Representations and Warranties of
the Company. The Company represents and warrants to and agrees
with the Underwriter on the date hereof, on the Closing Date (as defined in
Section 4) and, if applicable, on
each Option Closing Date (as defined in Section 2), if any, that:
(a) The
Registration Statement has become effective under the Securities Act; no stop
order suspending the effectiveness of the Registration Statement or preventing
or suspending the use of any Preliminary Prospectus or the Prospectus is in
effect, and no proceedings for such purpose are pending before or, to the
Company’s knowledge, threatened by the Commission.
(b) The
Base Prospectus and any Preliminary Prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the rules and regulations
thereunder (including, without limitation, Rule 430B(a) or
430A(b)).
(c) (i)
Each document, if any, filed or to be filed by the Company pursuant to the
Exchange Act and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the Commission
thereunder; (ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (iii) the Registration Statement, as of the
date hereof, does not contain and, as amended or supplemented, if applicable,
will not contain any 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; (iv) the Registration Statement complies and, as amended
or supplemented, if applicable, will comply in all material respects with the
Securities Act; the conditions to the use of Form S-3 in connection with the
offering and sale of the Shares as contemplated hereby have been satisfied; the
Registration Statement meets, and the offering and sale of the Shares as
contemplated hereby complies with, the requirements of Rule 415 under the
Securities Act (including without limitation Rule 415(a)(5)); (v) if a
Preliminary Prospectus is used in connection with the sale of any Shares, at no
time during the period that begins on the earlier of the date of the Preliminary
Prospectus and the date on which the Preliminary Prospectus was filed with the
Commission and ends immediately prior to the execution of this Agreement did any
Preliminary Prospectus contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; (vi) the Time
of Sale Prospectus does not, and at the Time of Sale, at the Closing
Date and, if applicable, each Option Closing Date, the Time of Sale
Prospectus, as then amended or supplemented by the Company, if applicable, will
not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; (vii) each Permitted Free Writing
Prospectus does not conflict with the information contained in the Registration
Statement, the Time of Sale Prospectus or the Prospectus; (viii) each road show,
when considered together with the Time of Sale Prospectus, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and (ix) the Prospectus, as of the date it is
filed with the Commission pursuant to Rule 424, at the Closing Date and, if
applicable, at each Option Closing Date, will comply in all material respects
with the Securities Act (including without limitation Section 10(a) of the
Securities Act) and will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the representations and warranties set forth in this Section 1(c)
do not apply to statements or omissions in the Registration Statement, the Time
of Sale Prospectus, any Preliminary Prospectus, any Permitted Free Writing
Prospectus, any road show or the Prospectus or any amendments or supplements
thereto based upon information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use therein.
(d) Prior
to the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any “prospectus” (within the meaning of
the Securities Act) or used any “prospectus” (within the meaning of the
Securities Act) in connection with the offer or sale of the Shares, in each case
other than any Preliminary Prospectus and/or the Permitted Free Writing
Prospectuses; the Company has not, directly or indirectly, prepared, used or
referred to any free writing prospectuses, without the prior written consent of
the Underwriter, other than the Permitted Free Writing Prospectuses and road
shows furnished or presented to the Underwriter before first
use. Each Permitted Free Writing Prospectus has been prepared, used
or referred to in compliance in all material respects with Rules 164 and 433
under the Securities Act; assuming that such Permitted Free Writing Prospectus
is so sent or given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was, if required
pursuant to Rule 433(d) under the Securities Act, filed with the Commission),
the sending or giving, by the Underwriter, of any Permitted Free Writing
Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without
reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth
in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1)
under the Securities Act are satisfied, and the registration statement relating
to the offering of the Shares contemplated hereby, as initially filed with the
Commission, includes a prospectus that, other than by reason of Rule 433 or Rule
431 under the Securities Act, satisfies the requirements of Section 10 of the
Securities Act; neither the Company nor the Underwriter is disqualified, by
reason of subsection (f) or (g) of Rule 164 under the Securities Act, from
using, in connection with the offer and sale of the Shares, free writing
prospectuses pursuant to Rules 164 and 433 under the Securities Act; each
Permitted Free Writing Prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) under the Securities Act or that was prepared by
or behalf of or used or referred to by the Company complies or will comply in
all material respects with the requirements of the Securities Act; no Permitted
Free Writing Prospectus conflicts with the information contained in the
Registration Statement, any Preliminary Prospectus, Time of Sale Prospectus or
Prospectus; and, to the Company’s knowledge, no free writing prospectus prepared
by or on behalf of or used by the Underwriter contains any “issuer information”
within the meaning of Rule 433(h)(2) under the Securities Act.
(e) The
Company was, at the time the Registration Statement was initially filed and when
it became effective, eligible to use Form S-3 to register the offering of the
Shares contemplated hereby. The Company was not an “ineligible
issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Securities Act
with respect to the offering of the Shares contemplated by the Registration
Statement.
(f) Shares
of Common Stock are listed for quotation on the NASDAQ Global Market (“NASDAQ”), and the Company has
not received any written notice from NASDAQ regarding the delisting of such
shares from NASDAQ. The Shares are duly listed for quotation, and
admitted and authorized for trading, subject to official notice of issuance, on
NASDAQ. To the Company’s knowledge, there are no affiliations or associations
between (i) any member of the Financial Industry Regulatory Authority, Inc.
(“FINRA”) and (ii) the
Company or any of the Company’s officers, directors or 5% or greater security
holders or any beneficial owner of the Company’s unregistered equity securities
that were acquired at any time on or after the 180th day immediately preceding
the date the Registration Statement was initially filed with the Commission,
except as disclosed in the Registration Statement (excluding the exhibits
thereto), the Time of Sale Prospectus and the Prospectus.
(g) The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not (i) have a material adverse effect on the
financial condition, business, properties or results of operations of the
Company and its subsidiaries taken as a whole or (ii) prevent or materially
interfere with the Company’s consummation of the transactions contemplated
hereby, or result in the delisting of shares of Common Stock from NASDAQ (the
occurrence of any such effect, prevention, interference or result described in
the foregoing clauses (i) or (ii) being herein referred to as a “material adverse
effect”).
(h) Each
“significant subsidiary” as listed on Schedule III hereto (each subsidiary on
Schedule III is referred to herein as a “Significant Subsidiary” and,
collectively, as the “Significant Subsidiaries”) of
the Company has been duly organized, is validly existing as a corporation or
limited liability company in good standing under the laws of the jurisdiction of
its organization, has the corporate power and authority to own its property and
to conduct its business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect; all
of the issued shares of capital stock of each Significant Subsidiary of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned by the Company directly or through subsidiaries,
free and clear of all liens, encumbrances, equities or claims, except that the
capital stock of certain Significant Subsidiaries directly or indirectly owned
by the Company has been pledged as security for the payment and performance of
all obligations and liabilities of the Company under the Amended and Restated
Credit Agreement, dated July 31, 2007, as amended, by and among the Company,
each of its subsidiaries that are signatories thereto, Wells Fargo Foothill,
Inc., as the arranger and administrative agent, and the lenders party thereto
(the “Loan
Agreement”).
(i) This
Agreement has been duly authorized, executed and delivered by the
Company.
(j) The
authorized and outstanding capitalization of the Company is as set forth in the
Time of Sale Prospectus and will be as set forth in the Prospectus, subject, in
each case, to the issuance of shares of Common Stock pursuant to employee
benefit plans, equity incentive plans or other employee compensation plans or
pursuant to the exercise of stock options disclosed as outstanding in the Time
of Sale Prospectus and the Prospectus, as the case may be. The
authorized capital stock of the Company conforms in all material respects and
will conform in all material respects as to legal matters to the description
thereof contained in the Time of Sale Prospectus and the
Prospectus.
(k) The
shares of Common Stock outstanding prior to the issuance of the Shares to be
sold by the Company have been duly authorized, are validly issued, fully paid
and non-assessable, have been issued in compliance in all material respects with
applicable securities laws and were not issued in violation of any preemptive or
similar rights.
(l) The
Shares to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights.
(m) Neither
the execution and delivery by the Company of, nor the performance by the Company
of its obligations under, this Agreement will conflict with, contravene, result
in a breach or violation of, or imposition of any lien, charge or encumbrance
upon any assets of the Company or any of its subsidiaries pursuant to, or
constitute a default under (i) any statute, law, rule, regulation, judgment,
order or decree of any governmental body, regulatory or administrative agency or
court having jurisdiction over the Company or any subsidiary; (ii) the
certificate of incorporation or bylaws of the Company or any of its
subsidiaries; or (iii) any contract, agreement, obligation, covenant or
instrument to which the Company or any of its subsidiaries (or any of their
respective assets) is subject or bound, except with respect to clauses (i) and
(iii) to the extent that such breach, violation, imposition or default would not
have a material adverse effect.
(n) No
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, NASDAQ),
or approval of the Company’s stockholders, is required in connection with the
issuance and sale of the Shares or the consummation of the transactions
contemplated hereby, other than (i) registration of the Shares under the
Securities Act, which has been effected, (ii) any necessary qualification under
the securities or blue sky laws of the various jurisdictions in which the Shares
are being offered by the Underwriter (iii) under the FINRA Conduct Rules, (iv)
notifications required to be filed with NASDAQ, or (v) any such approval,
authorization, consent, order or filing the failure to obtain or make would not
have a material adverse effect.
(o) There
are no actions, suits, claims, investigations or proceedings pending or, to the
Company’s knowledge, threatened or contemplated to which the Company or any of
its directors or officers or subsidiaries is or would be a party or of which any
of their respective properties is or would be subject at law or in equity,
before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, NASDAQ) (i) other than any such action, suit,
claim, investigation or proceeding accurately described in the Time of Sale
Prospectus which, if resolved adversely to the Company or any of its
subsidiaries, would not, individually or in the aggregate, have a material
adverse effect or (ii) that are required to be described in the Time of Sale
Prospectus and are not so described. There are no statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(p) The
Company is not, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Prospectus will
not be, required to register as an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended.
(q) The
financial statements included or incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, together with the
related notes and schedules, present fairly in all material respects the
consolidated financial position of the Company and its subsidiaries as of the
dates indicated and the consolidated results of operations, cash flows and
changes in stockholders’ equity of the Company for the periods specified and
have been prepared in compliance with the requirements of the Securities Act and
Exchange Act and in conformity with U.S. generally accepted accounting
principles applied on a consistent basis during the periods involved; the other
financial and statistical data contained or incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the Prospectus that are
derived from the Company’s financial statements and/or books and records are
accurately and fairly presented in all material respects and prepared on a basis
consistent with the financial statements and books and records of the Company;
there are no financial statements (historical or pro forma) that are required to
be included or incorporated by reference in the Registration Statement, the Time
of Sale Prospectus or the Prospectus that are not included or incorporated by
reference as required; the Company and its subsidiaries do not have any
liabilities or obligations, direct or contingent (including any off-balance
sheet obligations), not described in the Time of Sale Prospectus and the
Prospectus, except for such liabilities and obligations the existence of which
would not individually or in the aggregate have a material adverse effect; and
all disclosures contained or incorporated by reference in the Time of Sale
Prospectus and the Prospectus regarding “non-GAAP financial measures” (as such
term is defined by the rules and regulations of the Commission) comply in all
material respects with Regulation G under the Exchange Act and Item 10 of
Regulation S-K under the Securities Act, to the extent applicable.
(r) All
statistical or market-related data included or incorporated by reference in the
Time of Sale Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses are based on or derived from sources that the Company reasonably
believes to be reliable and accurate, and the Company has obtained the consent
to the use of such data from such sources to the extent such consent is known by
the Company to be required. Each “forward-looking statement” (within
the meaning of Section 27A of the Securities Act or Section 21E of the Exchange
Act) contained or incorporated by reference in the Registration Statement, the
Time of Sale Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses has been made or reaffirmed with a reasonable basis and in good
faith.
(s) There
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(t) Subsequent
to the date of the latest audited financial statements included in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i)
there has not occurred any material adverse change, or any development involving
a prospective material adverse change, in the financial condition, business,
properties or results of operations of the Company and its subsidiaries, taken
as a whole; (ii) the Company and its subsidiaries have not incurred any material
liability or obligation, direct or contingent, nor entered into any material
transaction other than in the ordinary course of business; (iii) the Company has
not purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital stock
other than ordinary and customary dividends; and (iv) there has not been
any material change in the capital stock, short-term debt or long-term debt of
the Company and its subsidiaries, except in each case as described in each of
the Registration Statement, the Time of Sale Prospectus and the Prospectus,
respectively.
(u) The
Company and its subsidiaries have good and marketable title to all real property
and good and marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries (other than such
property sold in the ordinary course of business since the end of the period
covered by such financial statements which sales, individually and in the
aggregate are not material to the business of the Company and its subsidiaries),
in each case free and clear of all liens, encumbrances and defects that would
have individually or in the aggregate a material adverse effect, except that all
of the assets owned by the Company and certain of its subsidiaries have been
pledged as security for the payment and performance of all obligations and
liabilities of the Company under the Loan Agreement; and except as described in
the Time of Sale Prospectus; and any real property and buildings held under a
material lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not materially interfere with the use made or to be made of such property and
buildings by the Company and its subsidiaries, in each case except as described
in the Time of Sale Prospectus.
(v) Each
of the Company and its subsidiaries owns, possesses or can acquire on reasonable
terms adequate inventions, patent applications, patents, trademarks (both
registered and unregistered), trade names, service names, copyrights, trade
secrets and other proprietary information necessary for the conduct
of their respective businesses as now conducted by them
(collectively, the “Intellectual Property”), and
neither the Company nor any of its subsidiaries has received any written notice
of infringement of or conflict with asserted rights of others with respect to
any of the Intellectual Property that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a material adverse effect.
(w) No
labor dispute with the employees of the Company or any of its subsidiaries
exists (except as described in the Time of Sale Prospectus) or, to the knowledge
of the Company, is imminent that could reasonably be expected to have a material
adverse effect.
(x) The
Company and its subsidiaries possess adequate certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, except as would
not have a material adverse effect, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect.
(y) Except
as otherwise would not have a material adverse effect, no subsidiary of the
Company is subject to any material direct or indirect prohibition on paying any
dividends to the Company, on making any other distribution on such subsidiary’s
capital stock, on repaying to the Company any loans or advances to such
subsidiary from the Company or on transferring any of such subsidiary’s property
or assets to the Company or any other subsidiary of the Company, except as
described in the Time of Sale Prospectus.
(z) The
Company maintains “internal control over financial reporting” (as defined in
Rules 13a-15 and 15d-15 under the Exchange Act) in compliance with the
requirements of the Exchange Act. The Company’s internal control over
financial reporting has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles and is effective in performing the
functions for which it was established. Except as described in the
Time of Sale Prospectus, since the end of the Company’s most recent audited
fiscal year, there has been (i) no significant deficiency or material weakness
in the design or operation of the Company’s internal control over financial
reporting (whether or not remediated) which is reasonably likely to adversely
affect the Company’s ability to record, process, summarize and report financial
information, and (ii) no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
(aa) The
Company maintains “disclosure controls and procedures” (as such term is defined
in Rules 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and Chief Financial Officer by others within those
entities, and such disclosure controls and procedures are effective in
performing the functions for which they were established; the principal
executive officers (or their equivalents) and principal financial officers (or
their equivalents) of the Company have made all certifications required by the
Sarbanes-Oxley Act of 2002 and any related rules and regulations promulgated by
the Commission (the “Sarbanes-Oxley Act”), and the
statements made in each such certification are accurate; the Company, its
subsidiaries and its directors and officers are each in compliance in all
material respects with the applicable provisions of the Sarbanes-Oxley
Act.
(bb) All
tax returns required to be filed by the Company or any of its Significant
Subsidiaries have been filed, and all taxes and other assessments of a similar
nature (whether imposed directly or through withholding), including any
interest, additions to tax or penalties applicable thereto due or claimed to be
due from such entities, have been timely paid, other than those being contested
in good faith and for which adequate reserves have been provided, or that would
not have a material adverse effect.
(cc) Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder; and the Company
and its subsidiaries have instituted and maintain policies and procedures
designed to ensure continued compliance therewith, including without limitation
a system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(dd) Except
as described in the Time of Sale Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the
date hereof, including any sales pursuant to Rule 144A under, or
Regulation D or S of, the Securities Act, other than shares issued pursuant
to employee benefit plans, equity incentive plans or other employee compensation
plans or pursuant to outstanding options.
(ee) Neither
the Company nor any of its subsidiaries nor any of their respective directors,
officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected to
cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
2. Agreements to Sell and
Purchase. The Company hereby agrees to issue and sell 4,200,000 Shares to
the Underwriter at a price of $4.09 per share (the “Purchase Price”), and the
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions herein set forth, agrees to purchase
from the Company at the Purchase Price the number of Firm Shares set forth
opposite the name of the Underwriter set forth in Schedule I
hereto.
Moreover,
the Company hereby agrees to issue and sell up to 630,000 Additional Shares to
the Underwriter at the Purchase Price and the Underwriter, upon the basis of the
representations and warranties contained herein, but subject to the terms and
conditions herein set forth, shall have the right (but not the obligation) to
purchase up to the Additional Shares at the Purchase Price. The
Underwriter may exercise this right on its own behalf in whole or from time to
time in part by giving written notice not later than 30 days after the date of
this Agreement. Any exercise notice shall specify the number of
Additional Shares to be purchased by the Underwriter and the date on which such
shares are to be purchased. Each purchase date must be at least one
business day after the written notice is given and may not be earlier than the
closing date for the Firm Shares or later than ten business days after the date
of such notice. Additional Shares may be purchased as provided in
Section 4 hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. On each day, if any,
that Additional Shares are to be purchased (an “Option Closing Date”), the
Underwriter agrees to purchase the number of Additional Shares specified in the
exercise notice.
3. Terms of Public Offering. The
Company is advised by the Underwriter that the Underwriter proposes to make a
public offering of the Shares as soon after
this Agreement has become effective as in the Underwriter’s reasonable judgment
is advisable. The Company is further advised by the Underwriter that
the Shares are to be offered to the public initially at $4.35 per
share (the “Offering
Price”) and to certain dealers selected by the Underwriter at a price
that represents a concession not in excess of $0.156 per share under the
Offering Price, and that the Underwriter may allow, and such dealers may reallow
a concession, not in excess of $0.10 per share, to the Underwriter or to certain
other dealers.
4. Payment and Delivery. Payment
for the Firm Shares to be sold by the Company shall be made to the Company in
Federal or other funds immediately available in Chicago against delivery of such
Firm Shares for the account of the Underwriter at 10:00 a.m., Central Time,
on April 6, 2010, or at such other time on the same or such other date as the
Underwriter and the Company may agree. The time and date of such
payment are hereinafter referred to as the “Closing Date.”
Payment
for any Additional Shares shall be made to the Company in Federal or other funds
immediately available in Chicago against delivery of such Additional Shares for
the account of the Underwriter at 10:00 a.m., Central Time, on the date
specified in the corresponding notice described in Section 2 or at such other
time on the same or on such other date, in any event not later than May 6, 2010,
as the Underwriter and the Company may agree.
The Firm
Shares and Additional Shares shall be registered in such names and in such
denominations as the Underwriter shall request in writing not later than one
full business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The Firm Shares and Additional Shares shall
be delivered to the Underwriter on the Closing Date or an Option Closing Date,
as the case may be, for the account of the Underwriter, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriter duly
paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriter’s
Obligations. The
obligations of the Underwriter are subject to the condition that all
representations and warranties on the part of the Company contained in this
Agreement are, on the date hereof, on the Closing Date and on each Option
Closing Date, if any, true and correct in all
material respects, the condition that the Company has performed in all material
respects its obligations required to be performed prior to the Closing Date and
the following further conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date
and each Option Closing Date, if any:
(i) there
shall not have occurred any downgrading in the rating of any debt securities of
the Company or any of its subsidiaries by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company or any
of its subsidiaries (other than an announcement or review with no reasonable
implication of a possible downgrading of such rating); and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the financial condition, business, properties or results of
operations of the Company and its subsidiaries, taken as a whole, from that set
forth in the Time of Sale Prospectus that, in the Underwriter’s reasonable
judgment, is material and adverse and that makes it, in the Underwriter’s
reasonable judgment, impracticable or inadvisable to offer or sell the Shares on
the terms and in the manner contemplated in the Time of Sale
Prospectus.
(b) The
Underwriter shall have received on the Closing Date and each Option Closing
Date, if any, a certificate, dated the Closing Date or such Option Closing Date,
as the case may be, and signed by the Chief Executive Officer and Chief
Financial Officer of the Company, to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct in
all material respects as of the Closing Date or such Option Closing Date, as the
case may be, that the Company has complied in all material respects with all of
the agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date or such Option Closing
Date, as the case may be, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or to the Company’s knowledge contemplated
by the Commission and that, subsequent to the date of the most recent financial
statements in the Time of Sale Prospectus, there has been no material adverse
change, nor any development or event involving a prospective material adverse
change, in the financial condition, business, properties or results of
operations of the Company and its subsidiaries taken as a whole except as set
forth in the Time of Sale Prospectus or as described in such
certificate. The delivery of the certificate provided for in this
Section 5(b) shall constitute a representation and warranty of the Company as to
the statements made in such certificate.
(c) The
Underwriter shall have received on the Closing Date and each Option Closing
Date, if any, an opinion and 10b-5 statement of Foley & Lardner LLP, outside
counsel for the Company, dated the Closing Date or such Option Closing Date, as
the case may be, in form and substance reasonably satisfactory to counsel for
the Underwriter as previously agreed. In rendering such opinion,
Foley & Lardner LLP, may rely as to matters of fact (but not as to legal
conclusions), to the extent they deem proper, on certificates of responsible
officers of the Company and its subsidiaries and of public
officials. The opinion of Foley & Lardner LLP shall be rendered
to the Underwriter at the request of the Company and shall so state
therein.
(d) The
Underwriter shall have received on the Closing Date and each Option Closing
Date, if any, an opinion of McDermott Will & Emery LLP, counsel for the
Underwriter, dated the Closing Date or such Option Closing Date, as the case may
be, in form and substance satisfactory to the Underwriter. In rendering such
opinion, McDermott Will & Emery LLP, may rely as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and its subsidiaries and of public
officials.
(e) The
Underwriter shall have received, on each of the date hereof, the Closing Date
and each Option Closing Date, if any, a letter dated the date hereof, the
Closing Date or the Option Closing Date, as the case may be, in form and
substance reasonably satisfactory to the Underwriter, from KPMG LLP, independent
public accountants, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements for and as of
the years ended December 31, 2009 and 2008 and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus; provided
that the letter delivered on the Closing Date shall use a “cut-off date” not
earlier than the date hereof.
(f) No
stop order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus, the Time of Sale
Prospectus or the Prospectus shall have been issued, and no proceedings for such
purpose shall have been instituted or threatened by the Commission; no notice of
objection of the Commission to the use of the Registration Statement shall have
been received; and all requests for additional information on the part of the
Commission shall have been complied with to the Underwriter’s reasonable
satisfaction.
(g) The
“lock-up” agreements, each substantially in the form of Exhibit A hereto,
between the Underwriter and each of Mary Jane Raymond and Jon F. Chait relating
to sales and certain other dispositions of shares of Common Stock or certain
other securities, delivered to the Underwriter on or before the date hereof,
shall be in full force and effect on the Closing Date.
(h) The
Company shall have filed with NASDAQ a Notification: Listing of
Additional Shares and shall have received no objection thereto from
NASDAQ.
(i) FINRA
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
The
obligations of the Underwriter to purchase Additional Shares hereunder are
subject to the delivery to the Underwriter on the applicable Option Closing Date
of such documents as the Underwriter may reasonably request, including
certificates of officers of the Company, legal opinions and an accountants’
comfort letter, and other matters related to the issuance of such Additional
Shares.
6. Covenants of the Company. The
Company covenants with the Underwriter as follows:
(a) To
furnish to the Underwriter, without charge, two signed copies of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish to the Underwriter in Chicago, Illinois,
without charge, prior to 10:00 a.m. Central Time on the business day next
succeeding the date of this Agreement and during the period mentioned in Section
6(f) or 6(g) below, as many copies of the Time of Sale Prospectus, the
Prospectus and any supplements and amendments thereto or to the Registration
Statement as the Underwriter may reasonably request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to the Underwriter a copy of each such
proposed amendment or supplement and not to file any such proposed amendment or
supplement to which the Underwriter reasonably objects, and to file with the
Commission within the applicable period specified in Rule 424(b) under the
Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) To
furnish to the Underwriter a copy of each proposed free writing prospectus to be
prepared by or on behalf of, used by, or referred to by the Company and not to
use or refer to any proposed free writing prospectus to which the Underwriter
reasonably objects.
(d) Not
to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to file
thereunder.
(e) To
advise the Underwriter promptly of any request by the Commission for amendments
or supplements to the Registration Statement, Base Prospectus, any Preliminary
Prospectus, Prospectus Supplement or Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus, the
Time of Sale Prospectus or the Prospectus; and if the Commission should enter
such a stop order, to use its reasonable best efforts to obtain the lifting or
removal of such order as soon as possible.
(f) If
the Time of Sale Prospectus is being used to solicit offers to buy the Shares at
a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then on
file, or if, in the reasonable opinion of counsel for the Underwriter, it is
necessary to amend or supplement the Time of Sale Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriter and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements
in the Time of Sale Prospectus as so amended or supplemented will not, in the
light of the circumstances when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or supplemented,
will no longer conflict with the Registration Statement, or so that the Time of
Sale Prospectus, as amended or supplemented, will comply with applicable
law.
(g) If,
during such period after the first date of the public offering of the Shares
as in the reasonable opinion of counsel for the Underwriter the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) under the Securities Act)
is required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, not misleading, or if, in the reasonable opinion of
counsel for the Underwriter, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriter and to the
dealers (whose names and addresses the Underwriter will furnish to the Company)
to which Shares may have been sold by the Underwriter on behalf of the
Underwriter and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable
law.
(h) If,
at any time during the period when a prospectus is required by the Securities
Act to be delivered (whether physically or through compliance with Rule 172
under the Securities Act or any similar rule) in connection with any sale of
Shares, the Registration Statement shall cease to comply with the requirements
of the Securities Act with respect to eligibility for the use of the form on
which the Registration Statement was filed with the Commission, to (i) promptly
notify the Underwriter; (ii) promptly file with the Commission a new
registration statement under the Securities Act, relating to the Shares, or a
post-effective amendment to the Registration Statement, which new registration
statement or post-effective amendment shall comply with the requirements of the
Securities Act and shall be in a form reasonably satisfactory to the
Underwriter; (iii) use its reasonable best efforts to cause such new
registration statement or post-effective amendment to become effective under the
Securities Act as soon as practicable; (iv) promptly notify the Underwriter of
such effectiveness; and (v) take all other action necessary or appropriate to
permit the public offering and sale of the Shares to continue as contemplated in
the Prospectus; all references herein to the Registration Statement shall be
deemed to include each such new registration statement or post-effective
amendment, if any;
(i) If
the third anniversary of the initial effective date of the Registration
Statement occurs before all the Shares have been sold by the Underwriter, prior
to the third anniversary to file a new shelf registration statement and to take
any other action reasonably necessary to permit the public offering of the
Shares to continue without interruption; references herein to the Registration
Statement shall include the new registration statement declared effective by the
Commission.
(j) To
file within the time period required by the Commission all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule
173(a) under the Securities Act) is required in connection with the offering or
sale of the Shares.
(k) Promptly
to furnish such information or to take such action as the Underwriter may
reasonably request and otherwise to qualify the Shares for offer and sale under
the securities or “blue sky” laws of such jurisdictions as the Underwriter shall
reasonably request, and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares; provided, however, that
the Company shall not be required to qualify as a foreign corporation or to file
a consent to service of process in any jurisdiction (excluding service of
process with respect to the offer and sale of the Shares); and to promptly
advise the Underwriter of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for offer or sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(l) To
make generally available to the Company’s security holders and to the
Underwriter as soon as practicable an earning statement covering a period of at
least twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act), which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(m) To
use its reasonable best efforts to cause the Shares to be listed on NASDAQ and
to maintain the listing of the Common Stock, including the Shares, on
NASDAQ.
(n) During
the period beginning on the date of this Agreement and continuing to and
including 90 days after the date of the Prospectus, and without the prior
written consent of the Underwriter with the authorization to release the lock-up
letter on behalf of the Underwriter, not to (i) to issue, 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, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock; (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether such transaction described in clause (i)
or (ii) above is to be settled by delivery of the Common Stock or such other
securities, in cash or otherwise; (iii) file any registration statement with the
Commission relating to the offering of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock; or
(iv) publicly announce an intention to effect any transaction specified in
clause (i), (ii) or (iii). The restrictions contained in the
preceding sentence shall not apply to (A) the Shares to be sold hereunder; (B)
the grant of options to purchase shares of Common Stock pursuant to the
Company’s equity incentive plans under the terms of such plans in effect on the
date hereof, provided such options are granted at fair market value and in
amounts and with exercise terms consistent in all material respects with the
Company’s past practice, or the sale of shares of Common Stock to employees
pursuant to the Company’s employee stock purchase plans (or the filing of a
registration statement on Form S-8 to register shares of Common Stock issuable
under such plans); or (C) the issuance by the Company of shares of Common Stock
upon the exercise of an option or the conversion of a security outstanding on
the date of this Agreement. Notwithstanding the foregoing, if
(1) during the last 17 days of the 90-day restricted period the Company
issues an earnings release or material news or a material event relating to the
Company occurs; or (2) prior to the expiration of the 90-day restricted
period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 90-day period, the restrictions
imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event. The Company shall
promptly notify the Underwriter of any earnings release, news or event that may
give rise to an extension of the initial 90-day restricted period.
(o) To
prepare, if the Underwriter so reasonably requests, a final term sheet relating
to the offering of the Shares, containing only information that describes the
final terms of the Shares or the offering in a form reasonably consented to by
the Underwriter, and to file such final term sheet within the period required by
Rule 433(d)(5)(ii) under the Securities Act following the date the final terms
have been established for the offering of the Shares.
(p) To
comply with Rule 433(d) under the Securities Act (without reliance on Rule
164(b) under the Securities Act) and with Rule 433(g) under the Securities
Act.
(q) Not
to take, directly or indirectly, any action designed, or which will constitute,
or has constituted, or would reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(r) Not,
at any time at or after the execution of this Agreement, to offer or sell any
Shares by means of any “prospectus” (within the meaning of the Securities Act)
or use any “prospectus” (within the meaning of the Securities Act) in connection
with the offer or sale of the Shares, except in each case other than the
Prospectus.
(s) To
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
(t) To
apply the net proceeds to the Company from the sale of the Shares in the manner
set forth under the caption “Use of Proceeds” in the Prospectus
Supplement.
7. Agreements of the
Underwriters. Each Underwriter covenants with the Company as
to the following:
(a) It
has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus” (which term includes use of
any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement or any press release
issued by the Company) other than a free writing prospectus that (i) is not
an “issuer free writing prospectus” (as defined in Rule 433 under the Securities
Act) and (ii) contains only (A) information describing the preliminary
terms of the Shares or their offering, (B) information permitted under Rule
134 under the Securities Act or (C) information that describes the final
terms of the Shares or their offering and that is included in the final term
sheet of the Company; provided that Underwriter may use any underwriter free
writing prospectus approved by the Company in advance in writing.
8. Expenses. Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company agrees to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: i) the fees, disbursements and expenses of the Company’s counsel and
the Company’s accountants in connection with the registration and delivery of
the Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any Preliminary
Prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies thereof to
the Underwriter and dealers, in the quantities hereinabove specified, ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriter, including any transfer or other taxes payable thereon, iii) the
cost of printing or producing any securities or blue sky memorandum in
connection with the offer and sale of the Shares under the securities laws of
the jurisdictions in which the Shares may be offered or sold and all expenses in
connection with the qualification of the Shares for offer and sale under such
securities laws as provided in Section 6(l) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriter in
connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriter incurred in connection with the
review and qualification of the offering of the Shares by FINRA, v) all costs
and expenses incident to listing the Shares on NASDAQ, vi) the cost of printing
certificates representing the Shares, vii) the costs and charges of any transfer
agent, registrar or depositary, viii) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection
with the marketing of the offering of the Shares, including, without limitation,
expenses associated with the preparation or dissemination of any road show,
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 with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, including (except to the extent provided in the following
paragraph) the cost of any aircraft chartered in connection with the road show,
ix) the document production charges and expenses associated with printing this
Agreement, x) all expenses in connection with any offer and sale of the Shares
outside of the United States, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriter in connection with offers and sales
outside of the United States, and xi) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section.
The
Underwriter will pay all of its costs and expenses, including fees and
disbursements of its counsel (including, but not limited to, any travel and
lodging expenses of the Underwriter’s representatives in connection with the
road show, with the Underwriter bearing a pro rata share of the direct costs of
the use of any aircraft chartered by the Underwriter’s representatives in
connection therewith), stock transfer taxes payable on resale of any of the
Shares by the Underwriter and any advertising expenses connected with any offers
it may make. Notwithstanding the above, if the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the Underwriter set forth in Section 5 is not satisfied, because of any
termination of this Agreement by the Underwriter pursuant to Section 10 hereof
or because of any refusal, inability or failure on the part of the Company to
perform any obligation or covenant hereunder or comply with any provision hereof
other than by reason of a default by the Underwriter, the Company will reimburse
the Underwriter on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) reasonably incurred by the Underwriter in
connection with this Agreement or the offering contemplated hereby.
9. Indemnity and
Contribution. a) The Company agrees to indemnify
and hold harmless the Underwriter, each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, and each affiliate of the Underwriter within
the meaning of Rule 405 under the Securities Act from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by, arising out of or based upon
i) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or ii) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any issuer
information that the Company has filed, or is required to file, pursuant to
Rule 433(d) of the Securities Act, any road show not constituting a free
writing prospectus, or the Prospectus or any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which there were made, not misleading; provided, however, that
the Company shall not be liable under this Section 9(a) to the extent that such
losses, claims, damages or liabilities are caused by, arise out of or are based
upon any such untrue statement or omission or alleged untrue statement or
omission made therein in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein.
(b) The
Underwriter agrees to indemnify and hold harmless the Company, the directors of
the Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by,
arising from or based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act, any road show
not constituting a free writing prospectus, or the Prospectus or any amendment
or supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which there were made, not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or omission or alleged untrue statement or omission was made therein in reliance
upon and in conformity with information relating to the Underwriter furnished to
the Company in writing by the Underwriter expressly for use
therein.
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to Section 9(a) or 9(b) such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel and to the payment of the fees and expenses of such
counsel by the indemnifying party or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be, in the reasonable judgment of counsel to the indemnified party,
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (i)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Underwriter and all persons, if any, who control the
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act or who are affiliates of the Underwriter
within the meaning of Rule 405 under the Securities Act, and (ii) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for the Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of either
such Section, and that all such fees and expenses shall be reimbursed as they
are incurred. In the case of any such separate firm for the
Underwriter and such control persons and affiliates of the Underwriter, such
firm shall be designated in writing by the Underwriter. In the case
of any such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability created by such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity is or
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To
the extent the indemnification provided for in 8(a) or 8(b) is unavailable to an
indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand from the offering of the Shares; or ii) if the
allocation provided by clause i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause i) above but also the relative fault of the
indemnifying party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriter on the other hand in connection
with the offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriter, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate Offering Price of
the Shares. The relative fault of the Company on the one hand and the
Underwriter on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The
Company and the Underwriter agree that it would not be just or equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 9(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 9(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that the Underwriter has otherwise been required to pay by
reason of 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
10. Termination. The
Underwriter may terminate this Agreement by notice given by the Underwriter to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited or minimum prices shall have been established on, or by, as the case may
be, any of the New York Stock Exchange, the American Stock Exchange, or the
NASDAQ Global Market; (ii) trading of any securities of the Company shall have
been suspended or materially limited on any exchange or in any over-the-counter
market; (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred; (iv) any moratorium
or material limitation on commercial banking activities shall have been declared
by Federal, Illinois or New York state authorities; (v) there shall
have occurred any outbreak or escalation of hostilities, act of terrorism
involving the United States or declaration by the United States of a national
emergency or war; or (vi) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (v); or (vi), in the
Underwriter’s good faith judgment, is material and adverse and makes it, in the
Underwriter’s good faith judgment, impracticable or inadvisable to proceed with
the offer, sale or delivery of the Shares on the terms and in the manner
contemplated in the Time of Sale Prospectus or the Prospectus (exclusive of any
supplement thereto).
12. Entire
Agreement. a) This Agreement, together with any
contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the
Shares, represents the entire agreement between the Company, on the one hand,
and the Underwriter, on the other, with respect to the preparation of any
Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus, the conduct
of the offering, and the purchase and sale of the Shares.
(b) The
Company acknowledges that in connection with the offering of the
Shares: i) the Underwriter has acted at arm’s length, are not agents
of, and owe no fiduciary duties to, the Company or any other person; ii) the
Underwriter owes the Company only those duties and obligations set forth in this
Agreement and prior written agreements (to the extent not superseded by this
Agreement), if any; and iii) the Underwriter may have interests that differ from
those of the Company. The Company waives to the full extent permitted
by applicable law any claims it may have against the Underwriter arising from an
alleged breach of fiduciary duty in connection with the offering of the
Shares.
13. Counterparts. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
14. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New
York.
15. Headings. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
16. Notices. All
communications hereunder shall be in writing and effective only upon receipt and
if to the Underwriter shall be delivered, mailed or sent to the Underwriter at
Robert W. Baird & Co. Incorporated, 227 West Monroe Street, Suite 2100,
Chicago, Illinois 60606, Fax: (312)609-4950, Attention: Brian Doyal,
with copies to the Legal Department, Robert W. Baird & Co. Incorporated, 777
East Wisconsin Avenue, Milwaukee, Wisconsin 53202, Fax: (414)298-7800
and to McDermott Will & Emery LLP, 227 West Monroe Street, Suite 4700,
Chicago, Illinois 60606, Fax: (312)984-7700, Attention: Thomas J.
Murphy; and if to the Company shall be delivered, mailed or sent to 560
Lexington Avenue, 5th Floor, New York, New York 10022, Fax:
(917)256-8403, Attention: Chief Financial Officer, with a copy to Foley &
Lardner LLP, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, Fax:
(414)297-4900, Attention: Benjamin F. Garmer, III.
[Signature
Page Follows]
|
Very
truly yours,
|
|
|
|
HUDSON
HIGHLAND GROUP, INC.
|
|
|
|
By:
|
/s/
Mary Jane Raymond
|
|
|
Name:
|
Mary
Jane Raymond
|
|
|
Title:
|
Executive
Vice President and Chief Financial
Officer
|
Accepted
as of the date hereof
ROBERT W.
BAIRD & CO. INCORPORATED
By:
|
/s/
Benjamin Brown
|
|
|
Name:
Benjamin
Brown
|
|
|
Title:
Director
|
|
SCHEDULE
I
Underwriter
|
|
Number
of Firm Shares To Be Purchased
|
|
|
Number
of Additional Shares To Be Purchased
|
|
|
|
|
|
|
|
|
Robert
W. Baird & Co. Incorporated
|
|
|
4,200,000 |
|
|
|
630,000 |
|
Total:
|
|
|
4,200,000 |
|
|
|
630,000 |
|
SCHEDULE
II
Time
of Sale Prospectus
1.
|
Preliminary
Prospectus, including the Preliminary Prospectus Supplement dated March
30, 2010 and Base
Prospectus
|
2.
|
orally
communicated pricing information to be included below on this Schedule II
if a final term sheet is not used, including the
following:
|
|
Number
of Shares to be
Sold: 4,200,000
|
|
Offering
size: $18,270,000
|
|
Estimated
net proceeds to the Company (after underwriting discounts and commissions
and offering expenses): $16,700,000
|
|
Underwriting
discount and commissions per share:
$0.26
|
|
Trade
date: March 30, 2010
|
|
Closing
date: April 6, 2010
|
SCHEDULE
III
Hudson
Highland Resources Management, Inc.
Hudson
Global Resources Jersey Limited
Hudson
Global Resources Limited
Hudson
Highland Group Holdings International, Inc.
Hudson
Global Resources (Aust) Pty Limited
EXHIBIT A
[FORM
OF LOCK-UP LETTER TO BE SIGNED BY EACH OF MARY JANE RAYMOND AND JON F.
CHAIT]
__________,
2010
ROBERT W.
BAIRD & CO. INCORPORATED
c/o
Robert W. Baird & Co. Incorporated
Suite
2100
Chicago,
IL 60606
Ladies
and Gentlemen:
The
undersigned understands that Robert W. Baird & Co. Incorporated (the “Underwriter”) proposes to
enter into an Underwriting Agreement (the “Underwriting Agreement”) with
Hudson Highland Group, Inc., a Delaware corporation (the “Company”), providing for the
public offering (the “Public
Offering”) by the Underwriter of shares of the Common Stock ($0.001 par
value) of the Company (the “Common Stock”).
To induce
the Underwriter to continue its efforts in connection with the Public Offering,
the undersigned hereby agrees that, without the prior written consent of the
Underwriter, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the final prospectus relating to the Public
Offering (the “Restricted
Period”), (1) offer, pledge (except for shares currently pledged as
collateral for a margin account, which are listed on Appendix I hereto), 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, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise, or (3) publicly announce an intention to effect
any transaction specified in clause (1) or (2). The foregoing
sentence shall not apply to (a) transfers of shares of Common Stock or any
security convertible into Common Stock as a bona fide gift, (b) transfers by
will or intestate succession or to the undersigned’s family or to a trust, the
beneficiaries of which are exclusively the undersigned or members of the
undersigned’s family, or (c) transfers of shares of Common Stock to the Company
for the sole purpose of satisfying tax withholding obligations that are incurred
upon the vesting of currently outstanding restricted stock grants in favor of
the undersigned; provided that in the case of
any transfer or distribution pursuant to clause (a) or (b), (i) each donee
or distributee shall sign and deliver a lock-up letter substantially in the form
of this letter and (ii) no filing under Section 16(a) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), reporting a
reduction in beneficial ownership of shares of Common Stock, shall be required
or shall be voluntarily made during the Restricted Period. In
addition, the undersigned agrees that, without the prior written consent of the
Underwriter, it will not, during the Restricted Period, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company’s transfer agent and registrar against
the transfer of the undersigned’s shares of Common Stock except in compliance
with the foregoing restrictions.
If:
(1) during
the last 17 days of the Restricted Period the Company issues an earnings release
or material news or a material event relating to the Company occurs;
or
(2) prior
to the expiration of the Restricted Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the Restricted Period;
then the
restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
The
undersigned understands that the Company and the Underwriter are relying upon
this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is
irrevocable and shall be binding upon the undersigned’s heirs, legal
representatives, successors and assigns.
The
Underwriter agrees that if the Underwriting Agreement does not become effective,
or if the Underwriting Agreement shall terminate or be terminated prior to
payment for and delivery of the shares of Common Stock to be sold thereunder,
the undersigned shall be released from all obligations under this
agreement.
Whether
or not the Public Offering actually occurs depends on a number of factors,
including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriter.
3
Unassociated Document
|
March 30,
2010
|
ATTORNEYS
AT LAW
777
EAST WISCONSIN AVENUE
MILWAUKEE,
WI 53202-5306
414.271.2400
TEL
414.297.4900
FAX
foley.com
CLIENT/MATTER
NUMBER
025294-0149
|
Hudson
Highland Group, Inc.
560
Lexington Avenue
New
York, New York 10022
|
|
Ladies
and Gentlemen:
We have
acted as counsel for Hudson Highland Group, Inc., a Delaware corporation (the
“Company”), in conjunction with the preparation of a Registration Statement on
Form S-3 (Registration No. 333-163605) (the “Registration Statement”), including
the prospectus constituting a part thereof, dated December 18, 2009, and the
prospectus supplement, dated March 30, 2010 (collectively, the “Prospectus”),
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the “Securities Act”), relating to the
issuance and sale of (i) 4,200,000 shares of the Company’s common stock, $.001
par value (the “Common Stock”), and related preferred share purchase rights (the
“Rights”) in a public offering and (ii) up to 630,000 additional shares of
Common Stock and related Rights pursuant to the over-allotment option granted by
the Company to the underwriters for such public offering (the shares of Common
Stock described in clauses (i) and (ii) are collectively referred to as the
“Shares”) in the manner set forth in the Prospectus. The terms of the
Rights are set forth in that certain Rights Agreement, dated as of February 2,
2005, between the Company and The Bank of New York, as Rights Agent (the “Rights
Agreement”).
In our
examination of the above-referenced documents, we have assumed the genuineness
of all signatures, the authenticity of all documents, certificates and
instruments submitted to us as originals and the conformity with the originals
of all documents submitted to us as copies.
Based
upon and subject to the foregoing and the other matters set forth herein, we are
of the opinion that:
BOSTON
BRUSSELS
CHICAGO
DETROIT
|
JACKSONVILLE
LOS
ANGELES
MADISON
MIAMI
|
MILWAUKEE
NEW
YORK
ORLANDO
SACRAMENTO
|
SAN
DIEGO
SAN
DIEGO/DEL MAR
SAN
FRANCISCO
SHANGHAI
|
SILICON
VALLEY
TALLAHASSEE
TAMPA
TOKYO
WASHINGTON,
D.C.
|
1. The
Shares covered by the Registration Statement, when issued and paid for in the
manner contemplated in the Registration Statement and the Prospectus, will be
validly issued, fully paid and nonassessable.
2. The
Rights, when issued pursuant to the terms of the Rights Agreement, will be
validly issued.
We
consent to the deemed incorporation by reference of this opinion into the
Registration Statement and the references to our firm therein. In
giving our consent, we do not admit that we are “experts” within the meaning of
Section 11 of the Securities Act or within the category of persons whose
consent is required by Section 7 of the Securities Act.
Very
truly yours,
/s/ Foley
& Lardner LLP
Unassociated Document
For
Immediate Release
|
Contact:
|
David F.
Kirby
|
|
|
Hudson Highland
Group
|
|
|
212-351-7216
|
|
|
david.kirby@hudson.com
|
Hudson
Highland Group Announces Pricing of
Common
Stock Offering
NEW YORK, NY – March 31, 2010
- - Hudson Highland Group, Inc. (Nasdaq: HHGP) announced today that it priced a
public offering of 4,200,000 shares of common stock at $4.35 per share to the
public. The company has also granted the underwriter for the offering
an option for 30 days to purchase up to 630,000 additional shares of common
stock at the same price per share to cover any over-allotments. The
closing of the offering is subject to customary closing conditions and is
expected to occur on April 6, 2010.
Assuming
no exercise of the underwriter’s over-allotment option, Hudson Highland Group
expects to receive net proceeds from the offering of approximately $16.7 million
after deducting underwriting discounts and commissions and estimated expenses of
the offering. The company expects to use the net proceeds from the
offering for general corporate and working capital purposes.
Robert W.
Baird & Co. acted as the sole underwriter for the offering. The
offering is being made only by means of a prospectus and related prospectus
supplement, copies of which may be obtained upon request to Robert W. Baird
& Co. Incorporated, 777 East Wisconsin Avenue, Galleria Level, Milwaukee,
Wisconsin 53202-5391, or by calling 1-800-792-2413. Copies of the
prospectus and prospectus supplement are also available on the Securities and
Exchange Commission website at www.sec.gov.
The
shares are being offered pursuant to an effective registration
statement. This press release does not constitute an offer to sell
these securities or a solicitation of an offer to buy these securities, nor
shall 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 under the securities laws of any such state or
jurisdiction.
About
Hudson Highland Group
Hudson
Highland Group, Inc. is a leading provider of permanent recruitment, contract
professionals and talent management services worldwide. From single
placements to total outsourced solutions, Hudson helps clients achieve greater
organizational performance by assessing, recruiting, developing and engaging the
best and brightest people for their businesses. The company employs
approximately 2,000 professionals serving clients and candidates in more than 20
countries. More information is available at www.hudson.com.
Safe
Harbor Statement
This
press release contains statements that the company believes to be
“forward-looking statements” within the meaning of the Private Securities
Litigation Reform Act of 1995. All statements other than statements
of historical fact included in this press release are forward-looking
statements. Words such as “anticipate,” “estimate,” “expect,”
“project,” “intend,” “plan,” “predict,” “believe” and similar words, expressions
and variations of these words and expressions are intended to identify
forward-looking statements. All forward-looking statements are
subject to risks and uncertainties that could cause actual results to differ
materially from those described in the forward-looking
statements. These factors include, but are not limited to, the impact
of global economic fluctuations including the recent economic downturn; the
ability of clients to terminate their relationship with the company at any time;
risks in collecting our accounts receivable; implementation of the company’s
cost reduction initiatives effectively; the company's history of negative cash
flows and operating losses may continue; the company’s limited borrowing
availability under our credit facility, which may negatively impact our
liquidity; restrictions on the company's operating flexibility due to the terms
of its credit facility; fluctuations in the company’s operating results from
quarter to quarter; risks relating to the company’s international operations,
including foreign currency fluctuations; risks related to our investment
strategy; risks and financial impact associated with dispositions of
underperforming assets; the company’s heavy reliance on information systems and
the impact of potentially losing or failing to develop technology; competition
in the company’s markets and the company’s dependence on highly skilled
professionals; the company’s exposure to employment-related claims from both
clients and employers and limits on related insurance coverage; the company’s
dependence on key management personnel; volatility of stock price; the impact of
government regulations; financial impact of audits by various taxing
authorities; and restrictions imposed by blocking
arrangements. Additional information concerning these and other
factors is contained in the company's filings with the Securities and Exchange
Commission. These forward-looking statements speak only as of the
date of this press release. The company assumes no obligation, and
expressly disclaims any obligation, to review or confirm analysts’ expectations
or estimates or to update any forward-looking statements, whether as a result of
new information, future events or otherwise.
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