Underwriting Agreement (2009)Full Document 

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8,000,000 Shares

 

CIBER, Inc.

 

Common Stock

 

UNDERWRITING AGREEMENT

 

February 19, 2009

 

Roth Capital Partners, LLC

  As Representative of the Underwriters named in Schedule I hereto

24 Corporate Plaza

Newport Beach, CA 92660

 

Ladies and Gentlemen:

 

CIBER, Inc. a Delaware corporation (“Company”), proposes to issue and sell to the Underwriters (as defined below) an aggregate of 8,000,000 shares of its common stock, $0.01 par value per share (the “Common Stock”).

 

It is understood that, subject to the conditions hereinafter stated, an aggregate of 8,000,000 shares of the Common Stock (the “Firm Securities”) will be sold to the underwriters named in Schedule I hereto (individually, the “Underwriter” and collectively, the “Underwriters”) in connection with the offering and sale (the “Offering”) of such Firm Securities.  Roth Capital Partners, LLC shall act as the representative (the “Representative”) of the Underwriters.  In addition, as set forth below the Company proposes to issue and sell to the Underwriters, upon the terms and conditions set forth in Section 2, an aggregate of up to 1,000,000 additional shares of the Common Stock (the “Optional Securities”).  The Firm Securities and the Optional Securities are hereinafter called the “Securities.”

 

This is to confirm the agreement concerning the purchase of the Securities from the Company by the Underwriters.  The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representative deems advisable after this Agreement has been executed and delivered.

 

1.             Representations and Warranties.  The Company represents and warrants to, and agrees with, each Underwriter that:

 

(a)           The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (No. 333-155663) (the “Registration Statement”), including any related preliminary prospectus or prospectuses, for the registration of the Securities and other securities of the Company (including the Securities) under the Securities Act of 1933 (the “1933 Act”), and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”).  At the time of filing the Registration Statement and as of the date of this Agreement, the Company met the requirements for use of Form S-3 under the 1933 Act for a primary offering. The prospectus contained in the Registration Statement at the time it was declared effective is referred to herein as

 



 

the “Base Prospectus.”  The Registration Statement was declared effective on January 8, 2009.  The Registration Statement, as amended, including the financial statements, exhibits and schedules thereto, in the form in which it was declared effective by the Commission under the 1933 Act, including all documents incorporated or deemed incorporated by reference therein and any information deemed to be a part thereof and included in the Registration Statement pursuant to Rule 430B (the “Rule 430B Information”) under the 1933 Act (“Rule 430B”) or the Securities Exchange Act of 1934, as amended (the “1934 Act”), is included herein in the term the “Registration Statement.”  Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations (“Rule 462(b)”) is herein referred to as the “Rule 462(b) Registration Statement,” and after such filing, the term “Registration Statement” shall include the Rule 462(b) Registration Statement.  Each preliminary prospectus supplement to the Base Prospectus, together with the Base Prospectus, that describes the Securities and the offering thereof, that omitted the Rule 430B Information and that was used prior to the filing of the final prospectus supplement referred to in the following sentence (together with all documents incorporated or deemed incorporated therein by reference) is herein called a “Preliminary Prospectus.”  Promptly after execution and delivery of this Agreement, the Company will prepare and file with the Commission a final prospectus supplement to the Base Prospectus relating to the Securities and the offering thereof, together with the Base Prospectus, in accordance with the provisions of Rule 430B and Rule 424(b) of the 1933 Act Regulations (“Rule 424(b)”).  Such final prospectus supplement, together with the Base Prospectus, in the form first furnished to the Underwriter to confirm sales of the Securities, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act or the 1934 Act at the time of the execution of this Agreement, is herein called the “Prospectus.”  For purposes of this Agreement, all references to the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).  The term “Free Writing Prospectus” as used herein shall have the meaning set forth in Rule 405 of the 1933 Act Regulations.  The term “Issuer Free Writing Prospectus” as used herein shall have the meaning set forth in Rule 433 of the 1933 Act Regulations.  The term “Disclosure Package” as used herein shall mean the Prospectus together with the Issuer Free Writing Prospectuses identified in Schedule II hereto, if any, and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.  The Preliminary Prospectus, if any, any Issuer Free Writing Prospectus required to be filed pursuant to Rule 433(d) of the 1933 Act Regulations and the Prospectus delivered to the Underwriter for use in connection with the Offering has been and will be identical to the respective versions thereof transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.

 

All references in this Agreement to financial statements and schedules and other information which is “described,” “contained,” “included” or “stated” in the Registration Statement, any Preliminary Prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, any Preliminary Prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the 1934 Act which is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, any Preliminary Prospectus or the Prospectus, as the case may be.

 



 

(b)           Neither the Commission nor any state or other jurisdiction or other regulatory body has issued, and neither is, to the knowledge of the Company, threatening to issue, any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or supplemented) or preventing or suspending the use of any Preliminary Prospectus, Issuer Free Writing Prospectus, the Disclosure Package or the Prospectus or suspending the qualification or registration of the Securities for offering or sale in any jurisdiction nor instituted or, to the knowledge of the Company, threatened to institute proceedings for any such purpose.  The Preliminary Prospectus at its date of issue and as of 7:00 a.m. Eastern Standard Time on the date following the date hereof (the “Initial Sale Time”), the Registration Statement at each effective date and the Initial Sale Time, and the Prospectus and any amendments or supplements thereto or to the Registration Statement when they are filed with the Commission or become effective, as the case may be, contain or will contain, as the case may be, all statements that are required to be stated therein by, and in all material respects conform or will conform, as the case may be, to the requirements of, the 1933 Act and the 1933 Act Regulations.  The Registration Statement as amended and supplemented, as of the applicable effective date and at the Initial Sale Time, does not contain or will not contain, as the case may be, any untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading.  Neither the Preliminary Prospectus, the Prospectus nor any supplement thereto contains or will contain, as the case may be, any untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.  Neither the Disclosure Package nor any supplement thereto, at the Initial Sale Time, contains or will contain, as the case may be, any untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.  Notwithstanding the foregoing, the Company makes no representation or warranty as to information contained in or omitted from the Registration Statement, the Disclosure Package or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished to the Company relating to the Underwriters by or on behalf of the Underwriters expressly for use in the preparation thereof (as provided in Section 11 hereof).  There is no contract, agreement, understanding or arrangement, whether written or oral, or document required by applicable law or regulation to be described in the Registration Statement, Disclosure Package or Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required.  The documents incorporated by reference in the Disclosure Package or the Prospectus at the time they were filed with the Commission, complied in all material respects with the requirements of the 1934 Act, and the rules and regulations adopted by the Commission thereunder (the “1934 Act Regulations”).  Any future documents incorporated by reference so filed, when they are filed, will comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations; no such incorporated document contained or will 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, in the light of the circumstances under which they were made, not misleading.  At the Initial Sale Time and at each Closing Date, the Disclosure Package and the Prospectus did not or will not, as the case may be, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(c)           The Company is eligible to use Issuer Free Writing Prospectuses in connection with the Offering pursuant to Rules 164 and 433 of the 1933 Act.  Any Issuer Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) of the 1933 Act

 



 

Regulations has been, or will be, timely filed with the Commission in accordance with the requirements of the 1933 Act Regulations.  Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) of the 1933 Act or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the 1933 Act Regulations, including but not limited to legending and recordkeeping requirements.  Except for the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto, the Company has not prepared, used or referred to, and will not, without the Representative’s prior consent, prepare, use or refer to any Free Writing Prospectus.  Each Issuer Free Writing Prospectus, as of its issue date and at all times through the completion of the Offering, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement.  The Company filed the Registration Statement with the Commission before using any Free Writing Prospectus.  The Company has satisfied and will satisfy the conditions of Rule 433 of the 1933 Act Regulations such that any electronic road show need not be filed with the Commission.

 

(d)           The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations.  The Company has filed all reports required to be filed by it under the 1934 Act, including pursuant to Section 13(a) or 15(d) thereof, for the three (3) years preceding the filing date of the Registration Statement (the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.  The Common Stock has been registered pursuant to Section 12(g) of the 1934 Act.

 

(e)           The Company has delivered to the Representative one complete manually signed copy of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and Preliminary Prospectus and the Prospectus, as amended or supplemented, in such quantities and at such places as the Representative have reasonably requested for each of the Underwriters.

 

(f)            The Company has not distributed and will not distribute, prior to the later of the Option Closing Date and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the Offering other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representative or included in Schedule II hereto or the Registration Statement.

 

(g)           Ernst & Young LLP, whose report appears in the Registration Statement, the Base Prospectus included in the Disclosure Package and the Prospectus, are independent certified public accountants as required by the 1933 Act and the 1933 Act Regulations.

 

(h)           The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, together with the related schedules and notes, present fairly the consolidated financial position of the Company and its subsidiaries on the basis stated therein at the dates indicated or for the respective periods to which they apply; such financial statements and related schedules and notes have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved, except as disclosed therein.  The supporting schedules, if any,

 



 

included or incorporated by reference in the Registration Statement present fairly in accordance with GAAP the information required to be stated therein, and the selected and summary financial data and other financial data included or incorporated by reference in the Preliminary Prospectus and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with such financial statements and the books and records of the Company as of the dates indicated therein. The pro forma financial statements and the related notes thereto, if any, included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.  All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K under the Act, to the extent applicable.

 

(i)            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 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 result in a material adverse change in the condition (financial or otherwise), business, prospects, properties or results of operations of the Company and its Subsidiaries considered as a whole) (“Material Adverse Effect”).

 

(j)            Each Subsidiary of the Company has been duly organized, is validly existing and in good standing under the laws of the jurisdiction of its organization, has the corporate, limited liability company, partnership or other similar power and authority to own its property and to conduct its business as described in the 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 Subsidiary of the Company organized as a corporation, and all ownership interests of each of the Subsidiaries of the Company not organized as a corporation, have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company and its subsidiaries, free and clear of all liens, encumbrances, equities or claims.

 

(k)           This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except that (i) the indemnification and contribution provisions set forth in this Agreement may not be enforceable under federal securities laws and (ii) bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting creditors’ rights and the application of principles of equity may limit the enforceability of this Agreement.

 

(l)            The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus.

 

(m)          The shares of capital stock of the Company outstanding prior to the issuance of the Securities have been duly authorized and are validly issued, fully paid and non-assessable.

 



 

(n)           The Securities have been duly authorized and, when delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable. The issuance of the Securities pursuant to this Agreement will not be subject to any preemptive rights, rights of first refusal or other similar rights to subscript for or purchase securities of the Company.  There are no restrictions upon the voting or transfer of the Securities under the Company’s certificate of incorporation or by-laws or any agreement or other instrument to which the Company is a party or otherwise filed as an exhibit to the Registration Statement.

 

(o)           The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or any agreement or other instrument binding upon the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, or any judgment, order or decree, naming the Company or any Subsidiary or to which any of the properties of the Company or any Subsidiary is subject, of any governmental body, agency or court having jurisdiction over the Company or any Subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as have already been obtained and such as may be required by the securities or

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