CHICAGO BRIDGE & IRON COMPANY
N.V.
Common Stock (Euro 0.01 par
value)
CALYON
SECURITIES (USA) INC.
1301 Avenue of the Americas
New York, New York 10019
Introductory. CHICAGO BRIDGE & IRON COMPANY N.V., a
company with limited liability organized and existing under the
laws of The Netherlands, established in Amsterdam, having its
corporate seat in The Hague and address at Oostduinlaan 75, 2596
JJ, The Hague, The Netherlands (the “ Company
”), proposes to issue and sell from time to time through
Calyon Securities (USA) Inc., as sales agent (the “
Agent ”) an offering of up to 10,000,000 shares (the
“ Shares ”) of its common stock, par value Euro
0.01 per share (the “ Common Stock ”), by any
method permitted by law deemed to be an “at-the-market”
offering as defined in Rule 415 of the Securities Act (as
defined below), including, without limitation, sales made directly
on the New York Stock Exchange (the “ NYSE ”),
on any other existing trading market for the Shares or to or
through a market maker (the “ ATM Program
”).
The
Company has prepared and filed with the Securities and Exchange
Commission (the “ Commission ”) an automatic
shelf registration statement on Form S-3 (File
No. 333-160852), which contains a base prospectus (the “
Base Prospectus ”) to be used in connection with the
public offering and sale of securities (the “ Shelf
Securities ”), including the Shares, to be issued from
time to time by the Company. Such registration statement, filed
with the Commission under the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder (collectively,
the “ Securities Act ”), including the financial
statements, exhibits and schedules thereto and all documents
incorporated or deemed to be incorporated by reference therein and
any information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act
or the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder (collectively, the “
Exchange Act ”), is called the “ Registration
Statement .” As used herein, the term “
Prospectus ” shall mean the prospectus supplement to
the Base Prospectus that describes the Shares and the offering
thereof pursuant to the ATM Program (the “ Prospectus
Supplement ”), together with the Base Prospectus, in the
form first used by the Agent to confirm sales of the Shares
pursuant to the ATM Program or in the form first made available to
the Agent by the Company to meet requests of purchasers pursuant to
Rule 173 under the Securities Act. As used herein, “
Applicable Time ” is 5:00 p.m. (New York time) on
August 18, 2009. As used herein, “ free writing
prospectus ” has the meaning set forth in Rule 405
under the Securities Act, and “ Time of Sale
Prospectus ” means the Prospectus, as amended or
supplemented immediately prior to the later to occur of
(i) the Applicable Time and (ii) the Time of Sale (as
defined below), together with the free writing prospectuses, if
any, identified in Schedule I hereto. As used herein,
the terms “Registration Statement,” “Base
Prospectus,” “Prospectus Supplement,” “Time
of Sale Prospectus” and “Prospectus” shall
include the documents incorporated and deemed to be incorporated by
reference therein.. All references in this Agreement to amendments
or supplements to the Registration Statement, the Base Prospectus,
the Prospectus Supplement, the Time of Sale Prospectus or
the
Prospectus
shall be deemed to mean and include the filing of any document
under the Exchange Act which is or is deemed to be incorporated by
reference in the Registration Statement, the Base Prospectus, the
Prospectus Supplement, the Time of Sale Prospectus or the
Prospectus, as the case may be. All references in this Agreement to
(i) the Registration Statement, the Base Prospectus, the
Prospectus Supplement or the Prospectus, or any amendments or
supplements to any of the foregoing, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“ EDGAR
”) and (ii) the Prospectus shall be deemed to include
the “ electronic Prospectus ” provided for use
in connection with the offering of the Shares as contemplated by
Section 5(p) of this Agreement. All references in this
Agreement to financial statements and schedules and other
information which are “ contained ,” “
included ” or “ stated ” in the
Registration Statement, the Base Prospectus, the Prospectus
Supplement, the Time of Sale Prospectus or the Prospectus (and all
other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference
in the Registration Statement or the Prospectus, as the case may
be.
The
Company hereby confirms its agreements with the Agent as
follows:
Section 1. Representations and Warranties.
The
Company hereby represents, warrants and covenants to the Agent, as
of the date of this Agreement and on each such time the following
representations and warranties are repeated or deemed to be made
pursuant to this Agreement, as follows:
(a) Compliance
with Registration Requirements. (i) At the time of filing
the Registration Statement, (ii) at the time of the most
recent amendment to the Registration Statement for the purposes of
complying with Section 10(a)(3) of the Securities Act (whether
such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) under the Securities Act) made any offer
relating to the Shares in reliance on the exemption of
Rule 163 under the Securities Act, (iv) as of each time
the Shares are sold pursuant to this Agreement (each, a “
Time of Sale ”), (v) at each Settlement Date (as
defined below) and (vi) at all times during which 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 offer or
sale of the Shares (the “ Delivery Period ”),
the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Securities Act, including not
having been an “ineligible issuer” as defined in
Rule 405 under the Securities Act.
The Registration
Statement is an “automatic shelf registration
statement,” as defined in Rule 405, which became
effective on July 29, 2009. The Company has not received from
the Commission any notice pursuant to Rule 401(g)(2) under the
Securities Act objecting to the Company’s use of the
automatic shelf registration form. No stop order suspending the
effectiveness of the Registration Statement is in effect and no
proceedings for such purpose have been instituted or are pending
or, to the best knowledge of the Company, are contemplated or
threatened by the Commission.
At the time the
Registration Statement was originally declared effective and at the
time the Company’s Annual Report on Form 10-K for the year
ended December 31, 2008 (the “ Annual Report
”) was filed with the Commission, the Company met the then
applicable requirements for use of Form S-3 under the Securities
Act. The Company meets the requirements for use of Form S-3 under
the Securities Act specified in Conduct Rule 5110(b)(7)(C)(i)
of the Financial Industry Regulatory Authority Inc. (“
FINRA ”).
2
The Prospectus
when filed complied in all material respects with the Securities
Act and, if filed by electronic transmission pursuant to EDGAR
(except as may be permitted by Regulation S-T under the
Securities Act), was identical to the copy thereof delivered to the
Agent for use in connection with the offer and sale of the Shares.
The Registration Statement and any post-effective amendment
thereto, at the time it became or becomes effective, complied or
will comply in all material respects with the Securities Act and
did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. As of
the Applicable Time, the Time of Sale Prospectus did not, and at
each Time of Sale and Settlement Date and at any such time this
representation is repeated or deemed to be made pursuant to this
Agreement, 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. The
Prospectus, as amended or supplemented, as of its date, did not and
will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties set forth
in the three immediately preceding sentences do not apply to
statements in or omissions from the Registration Statement or any
post-effective amendment thereto, or the Prospectus or the Time of
Sale Prospectus, or any amendments or supplements thereto, made in
reliance upon and in conformity with information relating to the
Agent furnished to the Company in writing by the Agent expressly
for use therein, it being understood and agreed that the only such
information furnished by the Agent to the Company consists of the
information described in Section 11(b)
below.
At the earliest
time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Securities
Act) of the Shares and as of the date of this Agreement, the
Company was not and is not an “ineligible issuer” in
connection with the offering of the Shares pursuant to Rules 164,
405 and 433 under the Securities Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act. Each
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 Rule 433 under the Securities Act, including
timely filing with the Commission or retention where required and
legending, and each such free writing prospectus, as of its issue
date did not include any information that conflicted, conflicts
with or will conflict with the information contained in the
Registration Statement (as amended or supplemented as of such
date), including any document incorporated by reference therein and
any prospectus supplement deemed to be a part thereof that has not
been superseded or modified. Except for the free writing
prospectuses, if any, identified in Schedule I hereto,
the Company has not prepared, used or referred to, and will not,
without your prior consent, prepare, use or refer to, any free
writing prospectus with respect to the ATM Program.
(b) Offering
Materials Furnished to the Agent. The Company has delivered to
the Agent one complete copy of the Registration Statement, each
amendment thereto and of each consent and certificate of experts
filed as a part thereof, and conformed copies of the Registration
Statement, each amendment thereto, the Time of Sale Prospectus, the
Prospectus, as amended or supplemented, and any free writing
prospectus reviewed and consented to by the Agent, in such
quantities and at such places as the Agent has reasonably
requested.
(c)
Distribution of Offering Material by the Company. The
Company has not distributed and will not distribute, prior to the
completion of the Agent’s distribution of the Shares, any
offering material
3
in connection
with the offering and sale of the Shares other than a Time of Sale
Prospectus, the Prospectus, any free writing prospectus reviewed
and consented to by the Agent, or the Registration
Statement.
(d) The Sales
Agency Agreement. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms, except as
rights to indemnification hereunder may be limited by applicable
law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors
or by general equitable principles.
(e) Corporate
Records. All existing minute books of the Company and its
subsidiaries, including all existing minutes of all meetings and
actions of the board of directors (including Audit, Compensation,
Nominating and Governance and other board committees) and
stockholders of the Company through the date of the latest meeting
and action (collectively, the “ Corporate Records
”) have been made available to the Agent and counsel to the
Agent. All such Corporate Records are complete and accurate and
accurately reflect, in all material respects, all transactions
referred to in such Corporate Records. There are no material
transactions, agreements or other actions of the Company and its
subsidiaries that are not properly approved or recorded in the
Corporate Records.
(f)
Authorization of the Shares. The Shares have been duly
authorized for issuance and sale pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this
Agreement, will be validly issued, fully paid and nonassessable,
and the issuance and sale of the Shares is not subject to any
preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase the Shares.
(g) No
Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any
equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by
this Agreement.
(h) No Material
Adverse Change. Except as otherwise disclosed in the Time of
Sale Prospectus, subsequent to the respective dates as of which
information is given in the Time of Sale Prospectus: (i) there
has been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in
the condition, financial or otherwise, or in the earnings, business
or operations, whether or not arising from transactions in the
ordinary course of business, of the Company and its subsidiaries,
considered as one entity (any such change is called a “
Material Adverse Change ”); (ii) the Company and
its subsidiaries, considered as one entity, have not incurred any
material liability or obligation, indirect, direct or contingent,
not in the ordinary course of business nor entered into any
material transaction or agreement not in the ordinary course of
business; and (iii) there has been no dividend or distribution
of any kind declared, paid or made by the Company or, except for
dividends or distributions declared, paid or made by the Company or
other subsidiaries, to or among or between the Company or any of
its subsidiaries on or with respect to any class of capital stock
or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock or otherwise.
(i) Independent
Accountants. As of the Applicable Time, Ernst & Young LLP,
who have expressed their opinion with respect to the financial
statements (which term as used in this Agreement includes the
related notes thereto) and supporting schedules filed with the
Commission as a part of the Registration Statement and included in
the Prospectus, are independent public or certified public
accountants as required by the Securities Act and the Exchange
Act.
4
(j) Preparation
of the Financial Statements. The financial statements
incorporated by reference in the Registration Statement or any Time
of Sale Prospectus or Prospectus (each, an “ Applicable
Prospectus ”) present fairly the consolidated financial
position of the Company and its subsidiaries as of and at the dates
indicated and the results of their operations and cash flows for
the periods specified. The supporting schedules included in the
Registration Statement present fairly the information required to
be stated therein. Such financial statements and supporting
schedules have been prepared in conformity with generally accepted
accounting principles as applied in the United States applied on a
consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. No other financial
statements or supporting schedules are required under the
Securities Act to be included in the Registration Statement or any
Applicable Prospectus.
(k)
Company’s Accounting System. The Company and each of
its subsidiaries make and keep accurate books and records and
maintain a system of internal accounting controls sufficient to
provide reasonable assurance 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 as applied in the United
States 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 existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. Since December 31, 2006, there has not
been and is no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and
since December 31, 2008, there has been no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
(l)
Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been
duly incorporated or organized, as the case may be, and is validly
existing as a corporation, partnership or limited liability
company, as applicable, in good standing under the laws of the
jurisdiction of its incorporation or organization except where the
failure to do so would not reasonably be expected to cause a
Material Adverse Change, and has the power and authority (corporate
or other) to own, lease and operate its properties and to conduct
its business as described in each Applicable Prospectus and, in the
case of the Company, to enter into and perform its obligations
under this Agreement. Each of the Company and each subsidiary (for
the purposes of this Agreement, “ subsidiaries ”
shall mean the subsidiaries listed on Exhibit 21 to the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2008, as amended by Amendment No. 1 on
Form 10-K/A filed on March 31, 2009, and “
subsidiary ” shall mean any one of them) is duly
qualified as a foreign corporation, partnership or limited
liability company, as applicable, to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business except where the failure to do so would
not reasonably be expected to cause a Material Adverse Change. All
of the issued and outstanding capital stock or other equity or
ownership interests of each subsidiary have been duly authorized
and validly issued, are fully paid and nonassessable and are owned
by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or
adverse claim. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
(i) the subsidiaries listed in Exhibit 21 to the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2008, as amended by Amendment No. 1 on
Form 10-K/A filed on March 31, 2009, and (ii) such other
entities omitted from Exhibit 21 which, when such omitted
entities are considered in the aggregate as a single subsidiary,
would not constitute a “significant subsidiary” within
the meaning of Rule 1-02(w) of Regulation S-X.
5
(m)
Capitalization and Other Capital Stock Matters. The
authorized, issued and outstanding capital stock of the Company is
as set forth in each Applicable Prospectus as of the dates referred
to therein. The Common Stock of the Company (including the Shares)
conform in all material respects to the description thereof
contained in the Time of Sale Prospectus. All of the issued and
outstanding common stock of the Company (including the Shares) have
been duly authorized and validly issued, are fully paid and
nonassessable and have been issued in compliance with federal and
state securities laws. None of the outstanding common stock of the
Company (including the Shares) was issued in violation of any
preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase securities of the Company. There are
no authorized or outstanding options, warrants, preemptive rights,
rights of first refusal or other rights to purchase, or equity or
debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company or any of its subsidiaries
other than those accurately described in each Applicable
Prospectus. The description of the Company’s stock option,
stock bonus and other stock plans or arrangements, and the options
or other rights granted thereunder, set forth in each Applicable
Prospectus accurately and fairly presents the information required
to be shown with respect to such plans, arrangements, options and
rights.
(n) Dividend
Restrictions. Except as set forth on Schedule III ,
no subsidiary of the Company is prohibited or restricted, directly
or indirectly, from paying dividends to the Company, or from making
any other distribution with respect to such subsidiary’s
equity securities or from repaying to the Company or any other
subsidiary of the Company any amounts that may from time to time
become due under any loans or advances to such subsidiary from the
Company or from transferring any property or assets to the Company
or to any other subsidiary.
(o) Stock
Exchange Listing; Exchange Act Registration; Shareholder
Approval. The Common Stock (including the Shares) is registered
pursuant to Section 12(g) of the Exchange Act and are listed on the
NYSE, and the Company has taken no action designed to, or likely to
have the effect of, terminating the registration of the Common
Stock (including the Shares) under the Exchange Act or delisting
the Common Stock (including the Shares) from the NYSE, nor has the
Company received any notification that the Commission or the NYSE
is contemplating terminating such registration or listing. The
Company is in compliance with all applicable corporate governance
requirements of the NYSE that are currently in effect. No approval
of the shareholders of the Company under the rules and regulations
of the NYSE is required for the Company to issue and deliver the
Shares pursuant to this Agreement. Any certificate signed by or on
behalf of the Company by an authorized representative and delivered
to the Agent or to counsel for the Agent shall be deemed to be a
representation and warranty by the Company to the Agent as to the
matters covered thereby.
(p)
Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor
any of its subsidiaries is (i) in violation of its charter or
by-laws, partnership agreement or operating agreement or similar
organizational document, as applicable, (ii) in default (or,
with the giving of notice or lapse of time, would be in default)
(“ Default ”) under any indenture, mortgage,
loan or credit agreement, note, contract, franchise, lease or other
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound (including,
without limitation, any credit agreement, indenture, pledge
agreement, security agreement or other instrument or agreement
evidencing, guaranteeing, securing or relating to indebtedness of
the Company or any of its subsidiaries ), or to which any of the
property or assets of the Company or any of its subsidiaries is
subject (each, an “ Existing Instrument ”), or
(iii) in violation in any respect of any statute, law, rule,
regulation, ordinance, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or its subsidiaries, or any of their properties, as applicable,
except with respect to clauses (ii) and (iii), for any
violations, breaches or Defaults as would not, individually or in
the aggregate, result in a Material Adverse Change. The
Company’s execution, delivery and performance of
this
6
Agreement,
consummation of the transactions contemplated hereby and by each
Applicable Prospectus and the issuance and sale of the Shares
(i) have been duly authorized by all necessary corporate
action and will not result in any violation of the provisions of
the charter or by-laws, partnership agreement or operating
agreement or similar organizational document of the Company or any
subsidiary, as applicable, (ii) will not conflict with or
constitute a breach of, or Default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, or
require the consent of any other party to, any Existing Instrument
and (iii) will not result in any violation of any law,
administrative regulation or administrative or court decree
applicable to the Company or any subsidiary. No consent, approval,
authorization or other order of, or registration or filing with,
any court or other governmental or regulatory authority or agency,
is required for the Company’s execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby and by each Applicable Prospectus, except such
as have been obtained or made by the Company and are in full force
and effect under the Securities Act, applicable state securities or
blue sky laws.
(q) No Material
Actions or Proceedings. There are no legal or governmental
actions, suits or proceedings pending or, to the best of the
Company’s knowledge, threatened (i) against or affecting
the Company or any of its subsidiaries, (ii) which have as the
subject thereof any officer or director of, or property owned or
leased by, the Company or any of its subsidiaries or
(iii) relating to environmental or discrimination matters,
where in any such case (A) there is a reasonable possibility
that such action, suit or proceeding might be determined adversely
to the Company, such subsidiary or such officer or director, or
(B) any such action, suit or proceeding, if so determined
adversely, would reasonably be expected to result in a Material
Adverse Change or adversely affect the consummation of the
transactions contemplated by this Agreement. No material labor
dispute with the employees of the Company or any of its
subsidiaries exists or, to the best of the Company’s
knowledge, is threatened or imminent.
(r)
Intellectual Property Rights. The Company and its
subsidiaries own or possess sufficient trademarks, trade names,
patent rights, copyrights, domain names, licenses, approvals, trade
secrets and other similar rights (collectively, “
Intellectual Property Rights ”) reasonably necessary
to conduct their businesses as now conducted; and the expected
expiration of any of such Intellectual Property Rights would not
result in a Material Adverse Change. Neither the Company nor any of
its subsidiaries has received, or has any reason to believe that it
will receive, any notice of infringement or conflict with asserted
Intellectual Property Rights of others, except for such notices as
would not reasonably be expected to cause a Material Adverse
Change. The Company is not a party to or bound by any options,
licenses or agreements with respect to the Intellectual Property
Rights of any other person or entity that are required under the
Securities Act to be set forth in the Prospectus and are not
described therein. To the knowledge of the Company, none of the
technology employed by the Company or any of its subsidiaries has
been obtained or is being used by the Company or any of its
subsidiaries in violation of any contractual obligation binding on
the Company or any of its subsidiaries or, to the Company’s
knowledge, any of its or its subsidiaries’ officers,
directors or employees or otherwise in violation of the rights of
any persons, except as would not reasonably be expected to cause a
Material Adverse Change.
(s) All
Necessary Permits, etc. The Company and each subsidiary possess
such valid and current certificates, authorizations or permits
issued by the appropriate state, federal, municipal or foreign
regulatory agencies or bodies necessary to conduct their respective
businesses except for those that the failure to have would not
reasonably be expected to cause a Material Adverse Change, and
neither the Company nor any subsidiary has received, or has any
reason to believe that it will receive, any notice of proceedings
relating to the revocation or modification of, or non-compliance
with, any such
7
certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could result
in a Material Adverse Change.
(t) Title to
Properties. The Company and each of its subsidiaries has good
and marketable title to all of the real and personal property and
other assets reflected as owned in the financial statements
referred to in Section 1(j) above (or elsewhere in any
Applicable Prospectus), in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, adverse claims
and other defects, except such as do not materially and adversely
affect the value of such property and do not materially interfere
with the use made or proposed to be made of such property by the
Company or such subsidiary. The real property, improvements,
equipment and personal property held under lease by the Company or
any subsidiary are held under valid and enforceable leases, with
such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property,
improvements, equipment or personal property by the Company or such
subsidiary.
(u) Tax Law
Compliance. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax
returns and have paid all taxes required to be paid by any of them
and, if due and payable, any related or similar assessment, fine or
penalty levied against any of them. The Company has made such
charges, accruals and reserves in the applicable financial
statements referred to in Section 1(j) above as are
required by generally accepted accounting principles in the United
States in respect of all federal, state and foreign income and
franchise taxes for all periods as to which the tax liability of
the Company or any of its subsidiaries has not been finally
determined.
(v) Company Not
an “Investment Company”. The Company has been
advised of the rules and requirements under the Investment Company
Act of 1940, as amended (the “ Investment Company Act
”). The Company is not, and will not be, either after receipt
of payment for the Shares or after the application of the proceeds
therefrom as described under “Use of Proceeds” in each
Applicable Prospectus, an “ investment company ”
within the meaning of Investment Company Act and will conduct its
business in a manner so that it will not become subject to the
Investment Company Act.
(w)
Insurance. Each of the Company and its subsidiaries are
insured by recognized, financially sound and reputable institutions
with policies in such amounts and with such deductibles and
covering such risks as are generally deemed adequate and customary
for their businesses. The Company has no reason to believe that it
or any subsidiary will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to
obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted
and at a cost that would not result in a Material Adverse Change.
Neither of the Company nor any subsidiary has been denied any
insurance coverage which it has sought or for which it has
applied.
(x) No Price
Stabilization or Manipulation; Compliance with
Regulation M. The Company has not taken, directly or
indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the
price of the Common Stock or any other “ reference
security ” (as defined in Rule 100 of
Regulation M under the 1934 Act (
“Regulation M” )) whether to facilitate the
sale or resale of the Shares or otherwise, and has taken no action
which would directly or indirectly violate
Regulation M.
(y) Related
Party Transactions. There are no business relationships or
related-party transactions involving the Company or any of its
subsidiaries or any other person required under the Securities Act
to be described in each Applicable Prospectus which have not been
described as required.
8
(z) Compliance
with Laws. The Company has not been advised, and has no reason
to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting
business, except where failure to be so in compliance would not
result in a Material Adverse Change.
(aa) Exchange
Act Compliance. The documents incorporated or deemed to be
incorporated by reference in the Time of Sale 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 Exchange Act, and, when read together with
the other information in the Time of Sale Prospectus and
Prospectus, at the time the Registration Statement and any
amendments thereto become effective and on each such time the
following representations and warranties are repeated or deemed to
be made pursuant to this Agreement, as the case may be, after
giving effect to the latest amendments or supplements to the
Registration Statement, Time of Sale Prospectus or Prospectus, will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the 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.
(bb)
Sarbanes-Oxley Compliance. The Company is in compliance with
all applicable provisions of the Sarbanes-Oxley Act of 2002 and all
rules and regulations promulgated thereunder or implementing the
provisions thereof (the “ Sarbanes-Oxley Act ”)
that are currently in effect.
(cc) FINRA
Matters. All of the information provided to the Agent or to
counsel for the Agent by the Company in connection with letters,
filings or other supplemental information provided to FINRA
pursuant to FINRA Conduct Rule 2710 or 2720 is true, complete
and correct.
(dd)
Statistical and Market-Related Data. The statistical,
demographic and market-related data included in the Registration
Statement and each Applicable Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate
or represent the Company’s good faith estimates that are made
on the basis of data derived from such sources.
(ee) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal
Control Over Financial Reporting. The Company has established
and maintains disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)), which
(i) are designed to ensure that material information relating
to the Company, including its consolidated subsidiaries, is made
known to the Company’s principal executive officer and its
principal financial officer by others within those entities,
particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared; (ii) have
been evaluated by management of the Company for effectiveness as of
the end of the Company’s most recent fiscal quarter; and
(iii) are effective in all material respects to perform the
functions for which they were established. The Company is not aware
of (i) any significant deficiencies or material weaknesses in
the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
Company’s ability to record, process, summarize and report
financial information or (ii) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company’s internal control over
financial reporting. The Company is not aware of any change in its
internal control over financial reporting that has occurred during
its most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(ff) Compliance
with Environmental Laws. Except as described in each Applicable
Prospectus and except as would not, singly or in the aggregate,
result in a Material Adverse Change, (i) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or
administrative
9
interpretation
thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, “
Hazardous Materials ”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “
Environmental Laws ”), (ii) the Company and its
subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending
or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company or any of its
subsidiaries and (iv) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(gg) Periodic
Review of Costs of Environmental Compliance. In the ordinary
course of its business, the Company conducts a periodic review of
the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review and the amount of its established reserves, the Company has
reasonably concluded that such associated costs and liabilities
would not, individually or in the aggregate, result in a Material
Adverse Change.
(hh) ERISA
Compliance. The Company and its subsidiaries and any “
employee benefit plan ” (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively,
“ ERISA ”)) established or maintained by the
Company, its subsidiaries or their “ ERISA Affiliates
” (as defined below) are in compliance with ERISA, except for
such non-compliance as would not be reasonably expected to cause a
Material Adverse Change. “ ERISA Affiliate ”
means, with respect to the Company or a subsidiary, any member of
any group of organizations described in
Sections 414(b),(c),(m) or (o) of the Internal Revenue
Code of 1986, as amended, and the regulations and published
interpretations thereunder (the “ Code ”) of
which the Company or such subsidiary is a member. No “
reportable event ” (as defined under ERISA) has
occurred or is reasonably expected to occur with respect to any
“ employee benefit plan ” established or
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates. No “ employee benefit plan ”
established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates, if such “ employee benefit
plan ” were terminated, would have any “ amount
of unfunded benefit liabilities ” (as defined under
ERISA). Neither the Company, its subsidiaries nor any of their
ERISA Affiliates has incurred or reasonably expects to incur any
liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “ employee benefit
plan ” or (ii) Sections 412, 4971, 4975 or
4980B of the Code. Each “ employee benefit plan
” established or maintained by the Company, its subsidiaries
or any of their ERISA Affiliates that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or failure to act, which would cause
the loss of such qualification.
(ii)
Brokers. Except for the sales agency discounts and
commissions payable to the Agent as described in the Time of Sale
Prospectus and the Prospectus, there is no broker, finder or other
party
10
that is
entitled to receive from the Company any brokerage or
finder’s fee or other fee or commission as a result of any
transactions contemplated by this Agreement.
(jj) Foreign
Corrupt Practices Act. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or other person acting on
behalf of the Company or any of its subsidiaries is aware of or has
taken any action, directly or indirectly, that has resulted or
would result in a violation of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder (the
“ FCPA ”), including, without limitation, making
use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such
term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in
contravention of the FCPA; and the Company and its subsidiaries
and, to the knowledge of the Company, the Company’s
affiliates have conducted their respective businesses in compliance
with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(kk) Money
Laundering Laws. The operations of the Company and its
subsidiaries are, and have been conducted at all times, in
compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and
any related or similar applicable rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the “ Money Laundering Laws ”)
and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(ll) OFAC.
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee,
affiliate or person acting on behalf of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“ OFAC ”); and the Company
will not directly or indirectly use the proceeds of this offering,
or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
Any
officers’ certificate delivered by the Company pursuant to
Section 8(f)(ii) shall be deemed a representation and
warranty by the Company to the Agent as to the matters covered
thereby.
The
Company acknowledges that the Agent and, for purposes of the
opinions to be delivered pursuant to Section 8 hereof,
counsel to the Company and counsel to the Agent, will rely upon the
accuracy and truthfulness of the foregoing representations and
hereby consents to such reliance.
Section 2. Sale and Delivery of the Shares.
On
the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company and the Agent agree that the Company may from
time to time seek to sell Shares through the Agent, acting as sales
agent as follows:
(a) The Company
may submit its orders to the Agent by telephone or email (or other
method mutually agreed upon by the parties) (including any price,
time or size limits or other customary
11
parameters or
conditions) (a “ Sales Notice ”) to sell Shares
on any Trading Day (as defined herein) which order shall be
confirmed by the Agent (and accepted by the Company) by electronic
mail using a form substantially similar to that attached hereto as
Exhibit A . As used herein, “ Trading Day
” shall mean any trading day on the NYSE, other than a day on
which the NYSE is scheduled to close prior to its regular weekday
closing time. Each Sales Notice shall be effective until
(i) the Shares specified in such Sales Notice have been sold,
(ii) the Company suspends or terminates such Sales Notice or
(iii) this Agreement terminates for any reason.
(b) Subject to the
terms and conditions hereof, the Agent shall use its commercially
reasonable efforts consistent with its normal trading and sales
practices to execute any Company order to sell Shares submitted to
it hereunder and with respect to which the Agent has agreed to act
as sales agent. The Agent may sell Shares by any method permitted
by law deemed to be an “at-the-market” offering as
defined in Rule 415 of the Securities Act, including, without
limitation, sales made directly on the NYSE, on any other existing
trading market for the Shares or to or through a market maker. The
Company acknowledges and agrees that (i) there can be no
assurance that the Agent will be successful in selling the Shares,
(ii) the Agent will incur no liability or obligation to the
Company or any other person or entity if it does not sell Shares
for any reason except as a result of an act or failure to act
undertaken or omitted to be taken by the Agent through its gross
negligence or willful misconduct, and (iii) the Agent shall be
under no obligation to purchase Shares on a principal basis
pursuant to this Agreement.
(c) The Agent
hereby covenants a
|
