$200,000,000
Shares of Common Stock
(par value $2.50 per share)
EQUITY DISTRIBUTION
AGREEMENT
UBS Securities
LLC
299 Park Avenue
New York, New York 10171-0026
The
Stanley Works, a Connecticut corporation (the “
Company ”), confirms its agreement (this "
Agreement ”) with UBS Securities LLC (the “
Manager ”), as follows:
SECTION
1. Description of Securities . The Company proposes to issue
and sell through or to the Manager, as sales agent and/or
principal, shares of the Company’s common stock, par value
$2.50 per share (the “ Common Stock ”), having
an aggregate offering price of up to $200,000,000 (the "
Shares ”) on the terms set forth in Section 3 of
this Agreement. The Company agrees that whenever it determines to
sell the Shares directly to the Manager as principal, it will enter
into a separate agreement (each, a “ Terms Agreement
”), in form and substance satisfactory to the Manager,
relating to such sale in accordance with Section 3 of this
Agreement.
SECTION
2. Representations and Warranties of the Company . The
Company represents and warrants to and agrees with the Manager
that:
(a) An
“automatic shelf registration statement” (the “
registration statement ”) as defined in Rule 405
under the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission (the “
Commission ”) thereunder (collectively called the
“ Act ”), on Form S-3 (File No. 333-153646)
in respect of the Shares, including a form of prospectus, has been
prepared and filed by the Company not earlier than three years
prior to the date hereof, in conformity with the requirements of
the Act. The registration statement contains certain information
concerning the offering and sale of the Common Stock, including the
Shares, and contains additional information concerning the Company
and its business; the Commission has not issued an order preventing
or suspending the use of the Basic Prospectus (as defined below),
the Prospectus Supplement (as defined below), the Prospectus (as
defined below) or any Permitted Free Writing Prospectus (as defined
below), or the effectiveness of the registration statement, and no
proceeding for that purpose or pursuant to Section 8A of the
Act has been instituted or, to the Company’s
knowledge,
threatened by the Commission. Except where the context otherwise
requires, " Registration Statement ,” as used herein,
means the registration statement, as amended at the time of such
registration statement’s effectiveness for purposes of
Section 11 of the Act (the " Effective Time ”),
as such section applies to the Manager, as well as any new
registration statement, post-effective amendment or new automatic
shelf registration statement as may have been filed pursuant to
this Agreement, including (1) any information contained in a
prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, to the extent such information is deemed, pursuant to
Rule 430B or Rule 430C under the Act, to be part of the
registration statement at the time of such registration
statement’s Effective Time, and (2) any registration
statement filed to register the offer and sale of Shares pursuant
to Rule 462(b) under the Act. Except where the context otherwise
requires, “ Basic Prospectus ,” as used herein,
means the prospectus filed as part of each Registration Statement,
together with any amendments or supplements thereto as of the date
of this Agreement (other than any prospectus supplement relating to
an offering of securities (including, without limitation, Common
Stock) other than pursuant to this Agreement). Except where the
context otherwise requires, “ Prospectus Supplement
,” as used herein, means the final prospectus supplement,
relating to the Shares, filed by the Company with the Commission
pursuant to Rule 424(b) under the Act within the time period
required by such rule, in the form furnished by the Company to the
Manager in connection with the offering of the Shares. Except where
the context otherwise requires, “ Prospectus ,”
as used herein, means the Prospectus Supplement together with the
Basic Prospectus attached to or used with the Prospectus
Supplement. “ Permitted Free Writing Prospectuses
,” as used herein, means the documents listed on
Schedule A attached hereto or as otherwise agreed by the
Company and the Manager in writing. “ Disclosure
Package ,” as used herein, means the Prospectus together
with any combination of one or more of the Permitted Free Writing
Prospectuses, if any, then in use in connection with the offering
of Shares under this Agreement. Any reference herein to the
registration statement, the Registration Statement, the Basic
Prospectus, the Prospectus Supplement, the Prospectus, the
Disclosure Package or any Permitted Free Writing Prospectus shall
be deemed to refer to and include the documents, if any,
incorporated by reference, or deemed to be incorporated by
reference, therein (the “ Incorporated Documents
”), including, unless the context otherwise requires, the
documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “ amend
,” “ amendment ” or “
supplement ” with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus, the Disclosure Package or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the filing of
any document under the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder (collectively, the “
Exchange Act ”) on or after the initial effective date
of the Registration Statement, or the date of the Basic Prospectus,
the Prospectus Supplement, the Prospectus, the Disclosure Package
or such Permitted Free Writing Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
(b) The
Registration Statement complied at the Effective Time, complies as
of the date hereof and, as amended or supplemented, at each
deemed
2
effective date
with respect to the Manager pursuant to Rule 430(B)(f)(2) of
the Act, at each Settlement Date (as defined in
Section 3(a)(vii) hereof), and at all times during which a
prospectus is required by the Act to be delivered (whether
physically, deemed to be delivered pursuant to Rule 153 or
through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, will comply, in all
material respects, with the requirements of the Act, and the
Registration Statement did not and will not, at each of or during
such times, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; 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 Act (including, without limitation,
Rule 415(a)(5)); the Basic Prospectus complied or will comply,
at the time it was or will be filed with the Commission, complies
as of the date hereof (if filed with the Commission on or prior to
the date hereof) and, as of the time of each sale of Shares
pursuant to this Agreement (each, a “ Time of Sale
”), at each Settlement Date and at all times during which a
prospectus is required by the Act to be delivered (whether
physically, deemed to be delivered pursuant to Rule 153 or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; at no time during the
period that begins on the earlier of the date of the Basic
Prospectus and the date the Basic Prospectus was filed with the
Commission and ends on each Settlement Date did or will the Basic
Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; the
Prospectus will comply, as of the date that it is filed with the
Commission, the date of the Prospectus Supplement, each Time of
Sale, each Settlement Date, and at all times during which a
prospectus is required by the Act to be delivered (whether
physically, deemed to be delivered pursuant to Rule 153 or
through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, in all material
respects, with the requirements of the Act (including, without
limitation, Section 10(a) of the Act); at no time during the period
that begins on the date of the Prospectus Supplement and ends at
the later of each Settlement Date and the end of the period during
which a prospectus is required by the Act to be delivered (whether
physically, deemed to be delivered pursuant to Rule 153 or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares did or will the Prospectus, as
then amended or supplemented, either alone or together with any
combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; each Permitted Free
Writing Prospectus will comply, as of its date, as of each Time of
Sale and Settlement Date and at all times during which a prospectus
is required by the Act to be delivered (whether physically, deemed
to be delivered pursuant to Rule 153 or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, in all material respects with the requirements
of the Act; at no time
3
during the
period that begins on the date of such Permitted Free Writing
Prospectus and ends at the later of each Settlement Date and the
end of the period during which a prospectus is required by the Act
to be delivered (whether physically, deemed to be delivered
pursuant to Rule 153 or through compliance with Rule 172 under
the Act or any similar rule) in connection with any sale of any
Shares did or will any Permitted Free Writing Prospectus include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided , however , that the Company
makes no representation or warranty with respect to any statement
contained in the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus in reliance
upon and in conformity with information concerning the Manager and
furnished in writing by or on behalf of the Manager expressly for
use in the Registration Statement, the Basic Prospectus, the
Prospectus or such Permitted Free Writing Prospectus; each
Incorporated Document, at the time such document was filed with the
Commission or at the time such document became effective, as
applicable, complied, in all material respects, with the
requirements of the Exchange Act and did not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
(c)
(i) At the time of filing of the Registration Statement,
(ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the 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 Act) made any offer
relating to the Shares in reliance on the exemption of
Rule 163 under the Act and (iv) at the date hereof, the
Company is a “well-known seasoned issuer” as defined in
Rule 405 under the Act. The Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) under the Act
objecting to the use of the automatic shelf registration
form.
(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” or “free writing prospectus”
(in each case within the meaning of the Act) or used any
“prospectus” or “free writing prospectus”
(in each case within the meaning of the Act) in connection with the
offer or sale of the Shares, and from and after the execution of
this Agreement until terminated pursuant to the terms hereof, the
Company will not, directly or indirectly, offer or sell any Shares
by means of any “prospectus” or “free writing
prospectus” (in each case within the meaning of the Act) or
use any “prospectus” or “free writing
prospectus” (in each case within the meaning of the Act) in
connection with the offer or sale of the Shares, other than the
Prospectus, as amended or supplemented from time to time in
accordance with the provisions of this Agreement, and any Permitted
Free Writing Prospectuses; the Company has not, directly or
indirectly, prepared, used or referred to any Permitted Free
Writing Prospectus except in compliance with Rule 163 or with
Rules 164 and 433 under the Act; assuming that any such
Permitted Free Writing
4
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 Act, filed with
the Commission), the sending or giving, by the Manager, of any
Permitted Free Writing Prospectus will satisfy the provisions of
Rule 164 or 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 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 Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the Manager is
disqualified, by reason of subsection (f) or (g) of
Rule 164 under the Act, from using, in connection with the
offer and sale of the Shares, “free writing
prospectuses” (as defined in Rule 405 under the Act) pursuant
to Rules 164 and 433 under the Act; the Company is not an
“ineligible issuer” (as defined in Rule 405 under
the Act) as of the eligibility determination date for purposes of
Rules 164 and 433 under the Act with respect to the offering
of the Shares contemplated by the Registration
Statement.
(e) The
Company’s authorized equity capitalization is as set forth in
the Prospectus; the outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and
nonassessable.
(f) The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Connecticut, with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and
conduct its business as described in the Registration Statement and
the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction that requires such qualification, except where the
failure to so qualify is not reasonably likely to have a material
adverse effect on the condition, financial or otherwise, or
earnings, business or affairs of the Company and the Subsidiaries
(as defined below), considered as one enterprise (a “
Material Adverse Effect ”).
(g) Each
subsidiary of the Company identified on Schedule B hereto
(each, a “ Subsidiary ” and, collectively, the
“ Subsidiaries ”) has been duly organized and is
validly existing as a corporation, limited partnership or limited
liability company, as the case may be, and is, in jurisdictions
where the legal concept exists, in good standing under the laws of
the jurisdiction of its formation, has the power and authority to
own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus, and
is duly qualified as a foreign entity 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 so to
qualify or to be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement and the Prospectus, all of the issued and outstanding
capital stock, partnership interests or membership interests, as
the case may be, of each Subsidiary has been duly
authorized
5
and validly
issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance claim or
equity, except where such security interest, mortgage, pledge,
lien, encumbrance, claim or equity would not result in a Material
Adverse Effect; none of the outstanding shares of capital stock,
partnership interests or membership interests, as the case may be,
of the Subsidiaries was issued in violation of any preemptive or
similar rights of any securityholder of such Subsidiary; and the
Subsidiaries constitute all of the Company’s
“significant subsidiaries” (as defined in Rule 1-02 of
Regulation S-X under the Act).
(h) The
Shares have been duly authorized and reserved for issuance by the
Company, will be duly issued and outstanding and fully paid and
non-assessable when delivered against payment therefor as provided
herein, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(i) The
statements in the Prospectus under the heading “Description
of Capital Stock” fairly summarize the documents and matters
therein described.
(j) This
Agreement has been duly authorized, executed and delivered by the
Company. The Company has not entered and will not enter during the
term of this Agreement into any other sales agency or distribution
agreements or similar arrangements to sell Common Stock or
securities convertible into or exchangeable or exercisable for
Common Stock or warrants or other rights to purchase Common Stock
or any other securities of the Company that are substantially
similar to the Common Stock with any agent or other representative
similar in nature to the equity shelf program established by this
Agreement.
(k) Neither
the Company nor any of its Subsidiaries is in violation or default
of (i) any provision of its charter or bylaws or similar
organizational documents or (ii) to the reasonable knowledge
of the Company (A) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject;
or (B) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or such Subsidiary or any of their properties, as applicable,
except, in the case of subclauses (A) and (B), for such
violations or defaults that are not reasonably likely to result in
a Material Adverse Effect.
(l) The
execution, and delivery by the Company of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby (i) will not conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or
6
to which any of
the property or assets of the Company or any of its Subsidiaries is
subject; nor (ii) will such action result in any violation of
(A) the provisions of the charter or bylaws or similar
organizational documents of the Company or any of its Subsidiaries
or (B) any statute or any order, rule or regulation of any
court or governmental agency or body (including, without
limitation, the New York Stock Exchange (the “ NYSE
”) (subject to the following clause of this paragraph) and
any insurance regulatory agency or body) having jurisdiction over
the Company or any of its Subsidiaries or any of their properties;
except in the case of clauses (i) and (ii)(B) for conflicts,
breaches, violations or defaults that would not, individually or in
the aggregate, have a Material Adverse Effect or a material adverse
effect on the ability of the Company to execute and deliver this
Agreement or consummate the transactions contemplated hereby; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except as have been
obtained or made and under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Manager or under the Conduct Rules of the Financial Industry
Regulatory Authority, Inc. and except for approvals of the NYSE in
connection with the listing of Shares on the NYSE, which such
approvals will be obtained at or prior to the applicable Settlement
Date with respect to any sale of Shares hereunder.
(m) Except
as described in the Registration Statement (excluding the exhibits
thereto) and the Prospectus, (i) no person has the right,
contractual or otherwise, to cause the Company to issue or sell to
it any shares of Common Stock or shares of any other capital stock
or other equity interests of the Company, (ii) no person has
any preemptive rights, resale rights, rights of first refusal or
other rights to purchase any shares of Common Stock or shares of
any other capital stock of or other equity interests in the Company
and (iii) no person has the right to act as an underwriter,
agent, financial advisor to the Company or in any similar capacity
in connection with the offer and sale of the Shares; no person has
the right, contractual or otherwise, to cause the Company to
register under the Act any shares of Common Stock or shares of any
other capital stock of or other equity interests in the Company, or
to include any such shares or interests in the Registration
Statement or the offering contemplated thereby.
(n) The
Company and its Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate U.S.
federal, state or non-U.S. regulatory authorities necessary to
conduct their respective businesses as now operated by them, except
where the failure to possess such licenses, permits and other
authorizations would not, singly or in the aggregate, be reasonably
likely to 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 be
reasonably likely to have a Material Adverse Effect, except as set
forth in or contemplated in the Registration Statement and the
Prospectus.
7
(o) 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 or its or their property is pending or,
to the reasonable knowledge of the Company, threatened that
(i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of
the transactions contemplated hereby or (ii) could reasonably
be expected to have a Material Adverse Effect, except as set forth
in or contemplated in the Registration Statement and the
Prospectus.
(p) Ernst
& Young LLP (the “ Accountants ”), who have
certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect
to the audited consolidated financial statements and related
schedules and the internal controls of the Company included in the
Registration Statement and the Prospectus, are independent public
accountants with respect to the Company within the meaning of
Regulation S-X under the Act.
(q) The
consolidated historical financial statements and related schedules
of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial condition, results of
operations and cash flows of the Company as of the dates and for
the periods indicated, comply as to form with the applicable
accounting requirements of Regulation S-X and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein).
(r) 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 an “investment company”
as defined in the Investment Company Act of 1940, as
amended.
(s) The
Company and its Subsidiaries own or lease all such properties as
are necessary to the conduct of the operations of the Company and
the Subsidiaries as presently conducted, except where the failure
to own or lease such properties is not reasonably likely to result
in a Material Adverse Effect.
(t) No
labor problem or dispute with the employees of the Company or any
of its Subsidiaries exists or, to the reasonable knowledge of the
Company, is threatened or imminent, except as would not have a
Material Adverse Effect, and except as set forth in or contemplated
in the Registration Statement and the Prospectus.
(u) Except
as to such matters as would not, singly or in the aggregate,
reasonably likely result in a Material Adverse Effect: (i) the
minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (“
ERISA ”), has been satisfied by each “pension
plan” (as defined in Section 3(2) of ERISA) which has
been established or maintained by the Company and/or one or more of
its subsidiaries,
8
and the trust
forming part of each such plan which is intended to be qualified
under Section 401 of the Code is so qualified; each of the
Company and its subsidiaries has fulfilled its obligations, if any,
under Section 515 of ERISA; neither the Company nor any of its
subsidiaries maintains or is required to contribute to a
“welfare plan” (as defined in Section 3(1) of
ERISA) which provides retiree or other post-employment welfare
benefits or insurance coverage (other than “continuation
coverage” (as defined in Section 602 of ERISA));
(ii) each pension plan and welfare plan established or
maintained by the Company and/or one or more of its subsidiaries is
in compliance in all material respects with the currently
applicable provisions of ERISA; and (iii) neither the Company
nor any Subsidiary has incurred or could reasonably be expected to
incur any withdrawal liability under Section 4201 of ERISA,
any liability under Section 4062, 4063, or 4064 of ERISA, or
any other liability under Title IV of ERISA.
(v) Except
as described in the Registration Statement and the Prospectus, and
except as such matters as would not, singly or in the aggregate,
reasonably likely result in a Material Adverse Effect, (i) to
the reasonable knowledge of the Company, 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
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 Governmental
Licenses required under any applicable Environmental Laws and are
each in compliance with their requirements, (iii) there are no
pending or, to the reasonable knowledge of the Company, 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, to the reasonable knowledge of the
Company, 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
Environmental Laws.
(w) Each
of the Company and its Subsidiaries has timely filed all non-U.S.,
U.S. federal, state and local tax returns that are required to be
filed or has requested extensions thereof (except in any case in
which the failure so to file would not have a Material Adverse
Effect and except as set forth in or contemplated in the
Registration Statement and the Prospectus) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the
foregoing
9
is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith and for which adequate
reserves have been provided in accordance with generally accepted
accounting principles, or as would not have a Material Adverse
Effect and except as set forth in or contemplated in the
Registration Statement and the Prospectus.
(x) The
Common Stock is an “actively-traded security” excepted
from the requirements of Rule 101 of Regulation M under the
Exchange Act by subsection (c)(1) of such rule.
(y) The
Company and its Subsidiaries 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 and to maintain asset
accountability; (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.
(z) The
Company has established and maintains and evaluates
“disclosure controls and procedures” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such
term is defined in Rule 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 and its
subsidiaries, is made known to the Company’s Chief Executive
Officer and its Chief Financial Officer by others within those
entities, and such disclosure controls and procedures are effective
to perform the functions for which they were established; the
Company’s independent auditors and the Audit Committee of the
Board of Directors of the Company are promptly advised of:
(i) all significant deficiencies, if any, in the design or
operation of internal controls which could adversely affect the
Company’s ability to record, process, summarize and report
financial data; and (ii) all fraud, if any, whether or not
material, that involves management or other employees who have a
role in the Company’s internal controls; all material
weaknesses, if any, in internal controls have been identified to
the Company’s independent auditors; since the date of the
most recent evaluation of such disclosure controls and procedures
and internal controls, there have been no significant changes in
internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses; 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 (the
“ Sarbanes-Oxley Act ”) and any related rules
and regulations promulgated by the Commission, and the statements
contained in each such certification are complete and correct; the
Company, its subsidiaries and the Company’s directors and
officers are each in compliance in all
10
material
respects with all applicable effective provisions of the
Sarbanes-Oxley Act and the rules and regulations of the Commission
and the NYSE promulgated thereunder.
(aa) To
the reasonable knowledge of the Company, there is and has been no
failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply in
all material respects with any provision of the Sarbanes-Oxley Act
and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302
and 906 related to certifications.
(bb) None
of the Company, any subsidiary or, 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 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, its subsidiaries and, to the knowledge of
the Company, its affiliates have, within the past eight years,
conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued
compliance therewith.
(cc) No
Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such Subsidiary’s capital stock, from
repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other
Subsidiary of the Company, except as described in or contemplated
in the Registration Statement and the Prospectus.
(dd) The
Company has not taken, directly or indirectly, any action designed
to or that has constituted or that might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
In
addition, any certificate signed by any officer of the Company and
delivered to the Manager or counsel for the Manager in connection
with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered
thereby, to the Manager.
11
SECTION
3. Sale and Delivery of Securities . (a) Subject to the
terms and conditions of this Agreement and on the basis of the
representations and warranties herein set forth, the Company agrees
to issue and sell through the Manager, as sales agent, and the
Manager agrees to use its commercially reasonable efforts to sell,
as sales agent for the Company, the Shares on the following
terms.
(i)
The Shares are to be sold on a daily basis or otherwise as shall be
agreed to by the Company and the Manager on any day that
(A) is a trading day for the NYSE (other than a day on which
the NYSE is scheduled to close prior to its regular weekday closing
time), (B) the Company has instructed the Manager by telephone
(confirmed promptly by electronic mail) from any of the individuals
listed as authorized representatives of the Company on
Schedule C hereto (the “ Authorized Company
Representatives ”) to make such sales and (C) the
Company has satisfied its obligations under Section 6 of this
Agreement. The Company will designate the maximum number of the
Shares to be sold by the Manager daily as agreed to by the Manager
and in any event not in excess of the aggregate offering amount
available for issuance under the then
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