ENCORE ACQUISITION
COMPANY
6.0% Senior Subordinated Notes
due 2015
Credit Suisse First
Boston LLC
Eleven Madison
Avenue
New York, New York 10010
1. Introductory . Encore Acquisition Company, a
Delaware corporation (the “ Company ”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to Credit Suisse First Boston LLC (“
CSFB ”) as the sole initial purchaser (the “
Purchaser ”) U.S.$300,000,000 principal amount of its
6.0% Senior Subordinated Notes due 2015 (“ Offered
Securities ”) to be issued under an indenture, to be
dated as of July 13, 2005 (the “ Indenture
”), among the Company, the subsidiary guarantors named
therein (the “ Subsidiary Guarantors ”) and
Wells Fargo Bank, National Association, as Trustee. The Offered
Securities will be guaranteed (the “ Subsidiary
Guarantees ”) by the Subsidiary Guarantors. The United
States Securities Act of 1933, as amended, is herein referred to as
the “ Securities Act .”
The holders of the
Offered Securities will be entitled to the benefits of a
Registration Rights Agreement among the Company, the Subsidiary
Guarantors and the Purchaser (the “ Registration Rights
Agreement ”), pursuant to which the Company and the
Subsidiary Guarantors agree to file a registration statement with
the Securities and Exchange Commission (the “
Commission ”) registering, under the Securities Act,
notes (the “ Exchange Securities ”) identical in
all material respects to the Offered Securities to be offered in
exchange for the Offered Securities.
The Company will
use the net proceeds of the Offered Securities to (A) to repay
outstanding indebtedness under the Company’s U.S.$500,000,000
senior revolving credit facility (the “ Senior Credit
Facility ”), (B) to redeem $150 million
aggregate principal amount of the Company’s 8.375% Senior
Subordinated Notes due 2012, notice of which shall be given at or
prior to the Closing, (C) to pay transaction costs relating to the
issue and sale of the Offered Securities and (D) for general
corporate purposes.
The Company hereby
agrees with the Purchaser as follows:
2. Representations and Warranties of the Company . The
Company and the Subsidiary Guarantors represent and warrant to, and
agree with, the Purchaser that:
(a) An offering
circular relating to the Offered Securities to be offered by the
Purchaser has been prepared by the Company. Such offering circular
(the “ Offering Circular ”), as supplemented as
of the date of this Agreement, together with all documents
incorporated by reference therein are hereinafter collectively
referred to as the “ Offering Document ”. On the
date of this Agreement, the Offering Document does not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in
or omissions from the Offering Document in reliance upon and in
conformity with information furnished to the Company in
writing by or
through CSFB specifically for use in the Offering Document. Except
as disclosed in the Offering Document, on the date of this
Agreement, the Company’s Annual Report on Form 10-K most
recently filed with the Commission and all subsequent reports
(collectively, the “ Exchange Act Reports ”)
which have been filed by the Company with the Commission or sent to
stockholders pursuant to the Securities Exchange Act of 1934 (the
“ Exchange Act ”) do not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
documents, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder; and any
further documents so filed and incorporated by reference in the
Offering Document, when such documents become effective or are
filed with the Commission will conform in all material respects to
the requirements of the Exchange Act and will not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(b) The Company
has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document; and the Company
is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would,
individually or in the aggregate, not have a material adverse
effect on the condition (financial or other), business, properties,
earnings, assets, stockholders’ equity, prospects or results
of operations of the Company and its subsidiaries taken as a whole
(a “ Material Adverse Effect ”).
(c) Each
subsidiary of the Company has been duly incorporated or organized
and is an existing corporation, limited partnership or limited
liability company in good standing under the laws of the
jurisdiction of its incorporation or organization, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document; and each
subsidiary of the Company is duly qualified to do business as a
foreign corporation, limited partnership or limited liability
company in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect; all outstanding
shares of capital stock of each Subsidiary Guarantor that is a
corporation have been duly and validly authorized and issued and
are fully paid and non-assessable, and the limited partnership
agreements or limited liability company agreements governing all
outstanding limited partnership interests or limited liability
company interests of each Subsidiary Guarantor that is a limited
partnership or limited liability company, as the case may be, have
been validly executed and delivered, and all capital contributions
required under such limited partnership agreements or limited
liability company agreements have been paid in full; and the
capital stock, limited partnership interests or limited liability
company interests of each subsidiary owned by the Company, directly
or through subsidiaries, is owned free from liens, encumbrances and
defects, except for liens under or permitted by the Senior Credit
Facility. The Subsidiary Guarantors are the only direct or indirect
subsidiaries of the Company.
(d) This Agreement
has been duly authorized, executed and delivered by the Company and
the Subsidiary Guarantors.
(e) The
Registration Rights Agreement has been duly authorized, and when
the Registration Rights Agreement has been duly executed and
delivered, the Registration Rights Agreement will be a valid and
binding agreement of the Company, enforceable against the Company
in accordance with their respective terms, subject to
(i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equitable principles regardless of whether enforcement
is sought in law or equity and (ii) limitations on
indemnification and contribution under federal or state securities
laws. On the Closing Date (as defined below), the Registration
Rights Agreement will, in all material respects, conform to the
description thereof in the Offering Document.
2
(f) The Indenture
has been duly authorized by the Company and each Subsidiary
Guarantor; the Offered Securities have been duly authorized by the
Company; each Subsidiary Guaranty has been duly authorized by each
respective Subsidiary Guarantor; and when the Offered Securities
are delivered and paid for pursuant to this Agreement and executed
and authenticated by the trustee in accordance with the provisions
of the Indenture on the Closing Date (as defined below),
(i) the Indenture will have been duly executed and delivered
by the Company and will conform in all material respects to the
description thereof contained in the Offering Document,
(ii) such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform in all
material respects to the description thereof contained in the
Offering Document and (iii) the Indenture, the Subsidiary
Guarantees and such Offered Securities will constitute valid and
legally binding obligations of the Company and the Subsidiary
Guarantors, enforceable against the Company or the Subsidiary
Guarantors, as the case may be, in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equitable principles regardless of whether enforcement
is sought in law or equity.
(g) On the Closing
Date (as defined below), the Exchange Securities will have been
duly authorized by the Company; and when the Exchange Securities
are issued, executed and authenticated in accordance with the terms
of the Exchange Offer (as defined in the Registration Rights
Agreement) and the Indenture, the Exchange Securities and the
Subsidiary Guarantees will be entitled to the benefits of the
Indenture and will be the valid and legally binding obligations of
the Company and the Subsidiary Guarantors, enforceable against the
Company or the Subsidiary Guarantors, as the case may be, in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equitable principles regardless of whether
enforcement is sought in law or equity.
(h) On the Closing
Date (as defined below) the Subsidiary Guaranty of each Subsidiary
Guarantor will conform in all material respects to the description
thereof contained in the Offering Document. When the Exchange
Securities have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer (as defined in the
Registration Rights Agreement) and the Indenture, the Subsidiary
Guaranty of each Subsidiary Guarantor will constitute valid and
legally binding obligations of such Subsidiary Guarantor,
enforceable against the Subsidiary Guarantor in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equitable principles regardless of whether enforcement
is sought in law or equity.
(i) Except as
disclosed in the Offering Document, there are no contracts,
agreements or understandings between the Company or any Subsidiary
Guarantor and any person that would give rise to a valid claim
against the Company, any Subsidiary Guarantor or any Purchaser for
a brokerage commission, finder’s fee or other like payment
with respect to the offer and sale of the Offered
Securities.
(j) No consent,
approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by (i) this
Agreement or the Registration Rights Agreement in connection with
the issuance and sale of the Offered Securities, or (ii) the
issuance of the Subsidiary Guarantees by the Subsidiary Guarantors,
except as may be required under applicable state securities
laws.
(k) The execution,
delivery and performance by the Company and the Subsidiary
Guarantors of the Indenture, this Agreement and the Registration
Rights Agreement, the issuance and sale of the Offered Securities,
and the consummation of the transactions contemplated herein and in
the Offering Circular (including the use of proceeds from the sale
of the Offered Securities as described in the Offering Circular),
and compliance with the terms and provisions thereof do not and
will not (i) conflict with or result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or instrument
to which the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is
3
subject, except
for such breaches, violations and defaults as would not have a
Material Adverse Effect, or (ii) result in any violation of
the charter or by-laws of the Company or any such subsidiary, and
the Company has full power and authority to authorize, issue and
sell the Offered Securities, and each Subsidiary Guarantor has full
power and authority to authorize, offer and sell its respective
Subsidiary Guaranty.
(l) The Company
and its subsidiaries have (1) good and indefeasible title to
all of their interests in the oil and gas properties described in
the Offering Document, (2) good and indefeasible title in fee
simple to all other real property owned by the Company or any of
its subsidiaries and (3) good title to all personal property
owned by the Company or any of its subsidiaries, in each case, free
and clear of all liens, encumbrances and defects, except
(i) as described in the Offering Document, (ii) liens
securing taxes and other governmental charges, or claims of
materialmen, mechanics and similar persons, not yet due and
payable, (iii) liens and encumbrances under oil and gas
leases, options to lease, operating agreements, utilization and
pooling agreements, participation and drilling concessions
agreements and gas sales contracts, securing payment of amounts not
yet due and payable and of a scope and nature customary in the oil
and gas industry, (iv) liens arising under or permitted by the
Senior Credit Facility or (v) liens, encumbrances and defects
that do not, individually or in the aggregate, materially affect
the value of such properties or materially interfere with the use
made or proposed to be made of such properties by the Company or
the Subsidiary Guarantors; except as described in the Offering
Document, the leases, options to lease, drilling concessions or
other arrangements held by the Company and its subsidiaries reflect
in all material respects the right of the Company and its
subsidiaries to explore the unexplored and undeveloped acreage
described in the Offering Document, and the care taken by the
Company and its subsidiaries with respect to acquiring or otherwise
procuring such leases, options to lease, drilling concessions and
other arrangements was generally consistent with standard industry
practices for acquiring or procuring leases to explore acreage for
hydrocarbons; and any real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made or proposed to be
made of such real property and buildings by the Company or its
subsidiaries.
(m) The Company
and its subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of
their business and the value of their respective properties as is
customary for companies engaged in similar businesses in similar
industries; and neither the Company nor any of its subsidiaries has
(i) received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or
(ii) any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at reasonable cost from similar
insurers as may be necessary to continue its business.
(n) Except as
disclosed in the Offering Document, no relationship, direct or
indirect, exists between or among the Company or any of its
subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, that would be required by the
Securities Act to be described in the Offering Document if the
Offering Document were a prospectus included in a registration
statement on Form S-1 filed with the Commission.
(o) The Company
and its subsidiaries possess all licenses, franchises,
certificates, permits, approvals, consents and other authorizations
(collectively, “ Governmental Licenses ”) issued
by and have made all declarations and filings with, the appropriate
federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses
as described in Offering Document except where the failure to
possess such Governmental Licenses or make such declaration and
filings would not, individually or in the aggregate, have a
Material Adverse Effect. The Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses except where the failure to so comply would not,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect; all of such Governmental Licenses are
valid and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not, individually or
in the aggregate, be reasonably expected to have a Material Adverse
Effect; and neither
4
the Company nor
any of its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or
authorization or has any reason to believe that any such
Governmental Licenses will not be renewed in the ordinary course,
except for notices, modifications or non-renewals as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(p) No labor
disturbance or dispute with employees of the Company or any of its
subsidiaries exists or, to the best knowledge of the Company, is
contemplated or threatened, which disturbance or dispute would have
a Material Adverse Effect.
(q) The Company
and its subsidiaries own, possess or can acquire on reasonable
terms adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, “
intellectual property rights ”) necessary to conduct
the business now operated by them, or presently employed by them,
except where the failure to own, possess or acquire such
intellectual property rights would not, individually or in the
aggregate, have a Material Adverse Effect, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect.
(r) Except as
disclosed in the Offering Document, neither the Company nor any of
its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, “
environmental laws ”), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a
claim.
(s) Except as
disclosed in the Offering Document, there are no pending actions,
suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under the Indenture, this
Agreement or the Registration Rights Agreement, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the
Company’s knowledge, threatened or contemplated.
(t) The financial
statements and the notes related thereto of the Company and its
consolidated subsidiaries included or incorporated by reference in
the Offering Document present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and changes in their consolidated cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States
applied on a consistent basis; the assumptions used in preparing
any pro forma financial data included in the Offering Document
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect
to those assumptions, and the pro forma data therein reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts; and the other financial
information included or incorporated by reference in the Offering
Document, including oil and gas production information, has been
derived from the accounting records of the Company and its
subsidiaries and presents fairly in all material respects the
information shown thereby.
(u) Except as
disclosed in the Offering Document, since the date of the latest
audited financial statements included in the Offering Document
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business or results of operations
of the Company and its subsidiaries taken as a whole, and, except
as disclosed in or contemplated by the Offering Document, there has
been no dividend or distribution of any
5
kind declared,
paid or made by the Company on any class of its capital stock
(other than the stock dividend declared on June 15,
2005).
(v) Ernst &
Young LLP, who has certified certain financial statements of the
Company, is the independent registered public accounting firm with
respect to the Company as required by the Securities
Act.
(w) Miller and
Lents, Ltd. (the “ Engineer ”), whose reserve
evaluations are referenced or appear, as the case may be, in the
Offering Document were, as of December 31, 2002,
December 31, 2003 and December 31, 2004, and are, as of
the date hereof, independent engineers with respect to the Company;
and the historical information underlying the estimates of the
reserves of the Company supplied by the Company to the Engineer for
the purposes of preparing the reserve reports of the Company
referenced in the Offering Document (the “ Reserve
Reports ”), including, without limitation, production
volumes, sales prices for production, contractual pricing
provisions under oil or gas sales or marketing contracts or under
hedging arrangements, costs of operations and development, and
working interest and net revenue information relating to the
Company’s ownership interests in properties, was true and
correct in all material respects on the date of each such Reserve
Report was prepared in all material respects in accordance with
customary industry practices.
(x) The Company is
subject to the reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and files reports with the
Commission on the Electronic Data Gathering, Analysis, and
Retrieval (EDGAR) system.
(y) On the Closing
Date (as defined below), the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as
amended (the “ TIA ” or “ Trust
Indenture Act ”), and the rules and regulations of the
Commission applicable to an indenture which is qualified
thereunder.
(z) Neither the
Company nor any Subsidiary Guarantor is an open-end investment
company, unit investment trust or face-amount certificate company
that is or is required to be registered under Section 8 of the
United States Investment Company Act of 1940 (the “
Investment Company Act ”); and neither the Company nor
any Subsidiary Guarantor is or, after giving effect to the offering
and sale of the Offered Securities and the application of the
proceeds thereof as described in the Offering Document, will be an
“investment company” as defined in the Investment
Company Act.
(aa) No securities
of the same class (within the meaning of Rule 144A(d)(3) under
the Securities Act) as the Offered Securities or the Subsidiary
Guarantees are listed on any national securities exchange
registered under Section 6 of the Exchange Act or quoted in a
U.S. automated inter-dealer quotation system.
(bb) Assuming the
accuracy of the representations of the Purchaser set forth in
Section 4 and the performance by the Purchaser of its obligations
hereunder, the offer and sale of the Offered Securities and
Subsidiary Guarantees in the manner contemplated by this Agreement
will be exempt from the registration requirements of the Securities
Act by reason of Section 4(2) thereof; and it is not necessary
to qualify an indenture in respect of the Offered Securities under
the Trust Indenture Act.
(cc) No
“nationally recognized statistical rating organization”
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act has notified the Company that it is considering
(i) the downgrading, suspension or withdrawal of, or any
review for a possible change that does not indicate the direction
of the possible change in, any rating assigned to the Company or
any securities of the Company or (ii) any change with negative
implications in the outlook for any rating of the Company or any
securities of the Company.
(dd) None of the
Company or any Subsidiary Guarantor, nor any of their affiliates,
nor any person acting on its or their behalf (i) has, within
the six-month period prior to the date hereof, offered or sold in
the United States or to any U.S. person (as such terms are defined
in Regulation S under the Securities Act (“
Regulation S ”)) the Offered Securities, the
Subsidiary Guarantees or any security of the same class
or
6
series as the
Offered Securities or the Subsidiary Guarantees, other than
pursuant to this Agreement, or (ii) has offered or will offer
or sell the Offered Securities or the Subsidiary Guarantees
(A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any such
securities sold in reliance on Rule 903 of Regulation S,
by means of any directed selling efforts within the meaning of Rule
902(c) of Regulation S. The Company, its affiliates and any
person acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S.
The Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities or the Subsidiary Guarantees except for this Agreement
and the Registration Rights Agreement.
(ee) The Company
and its subsidiaries maintain systems of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(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.
(ff) Nothing has
come to the attention of the Company that has caused the Company to
believe that the statistical and market-related data included in
the Offering Document is not based on or derived from sources that
are reliable and accurate in all material respects.
(gg) The Company
has established and maintains disclosure controls and procedures
(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,
including its consolidated subsidiaries, is made known to the
Company’s principal executive officer and its principal
financial officer by others within those entities, and such
disclosure controls and procedures are effective at the reasonable
assurance level to perform the functions for which they were
established; the Company’s auditors and the Audit Committee
of the Board of Directors have been advised of: (i) any
significant deficiencies and 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;
and (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; since
the date of the most recent evaluation of such disclosure controls
and procedures, there has not been any 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; the
principal executive officer and principal financial officer 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 any such certification are complete and
correct; and the Company is otherwise in compliance with all
applicable provisions of the Sarbanes-Oxley Act that are
effective.
(hh) Neither the
Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or in default in the performance of
any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease 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 or their
respective property is bound except where such violations or
defaults would not have a Material Adverse Effect.
(ii) There are no
contracts, agreements or understandings between the Company or any
subsidiary and any person granting such person the right to require
the Company to file a registration statement under the Securities
Act with respect to any securities of the Company (except as
disclosed in the Offering Document) or to require the Company to
include such securities with the Offered Securities registered
pursuant to any registration statement.
(jj) Neither the
Company nor any of its subsidiaries has taken, and none of them
will take, any action that might cause this Agreement or the
issuance or sale of the Offered Securities to violate
7
Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve
System. The Company does not own, and none of the proceeds from the
offering of the Offered Securities will be used directly or
indirectly to purchase or carry any “margin stock” as
defined in Regulation U.
(kk) Neither the
Company nor any of its subsidiaries has distributed or, prior to
the later to occur of (A) the Closing Date (as defined below)
and (B) completion of the distribution of the Offered
Securities, will distribute any material in connection with the
offering and sale of the Offered Securities other than the Offering
Document or other material, if any, not prohibited by the
Securities Act and the Financial Services and Markets Act 2000 of
the United Kingdom (“ FSMA ”) (or regulations
promulgated under the Securities Act or the FSMA) and approved by
the Purchaser, such approval not to be unreasonably withheld or
delayed.
(ll) The Company
and its subsidiaries have paid all federal, state, local and
foreign taxes and filed all tax returns required to be paid or
filed through the date hereof to the extent that such taxes have
become due and are not being contested in good faith with such
exceptions as would not singly or in the aggregate result in a
Material Adverse Effect; and except as otherwise disclosed in the
Offering Document, there is no tax deficiency that has been
asserted against the Company or any of its subsidiaries or any of
their respective properties or assets which has had, nor does the
Company have any knowledge of any tax deficiency, which if
determined adversely to the Company or its subsidiaries might have,
a Material Adverse Effect
(mm) Except as
described in the Offering Document, no subsidiary of the Company is
currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from
paying any dividends to the Company, from making any other
distribution to the Company 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 properties or assets to the Company or any other
subsidiary of the Company.
3. Purchase, Sale and Delive
|
