Exhibit 1.1
STIFEL FINANCIAL CORP.
(a Delaware corporation)
1,500,000 Shares of Common
Stock
PURCHASE AGREEMENT
Dated: September 9, 2009
STIFEL FINANCIAL CORP.
(a Delaware corporation)
1,500,000 Shares of Common
Stock
(Par Value $0.15 Per
Share)
PURCHASE AGREEMENT
September 9, 2009
Stifel, Nicolaus & Company,
Incorporated
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
as Representatives of the several
Underwriters
c/o Merrill Lynch, Pierce, Fenner
& Smith
Incorporated
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Stifel Financial Corp., a Delaware corporation
(the “Company”), confirms its agreement with Merrill
Lynch, Pierce, Fenner & Smith Incorporated (“Merrill
Lynch”) and each of the other Underwriters named in Schedule
A hereto (collectively, the “Underwriters,” which term
shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Merrill Lynch and
Stifel, Nicolaus & Company, Incorporated are acting as
representatives (in such capacity, the
“Representatives”), with respect to (i) the sale by the
Company and the purchase by the Underwriters, acting severally and
not jointly, of the respective numbers of shares of Common Stock,
par value $0.15 per share, of the Company (“Common
Stock”) set forth in Schedules A and B hereto and
(ii) the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 225,000
additional shares of Common Stock to cover overallotments, if any.
The aforesaid 1,500,000 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriters and all or
any part of the 225,000 shares of Common Stock subject to the
option described in Section 2(b) hereof (the “Option
Securities”) are hereinafter called, collectively, the
“Securities.”
The Company understands that the
Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the
Securities and Exchange Commission (the “Commission”)
an automatic shelf registration statement on Form S-3 (No.
333-158301), including the related preliminary prospectus or
prospectuses, which registration statement became effective upon
filing under Rule 462(e) of the rules and regulations of the
Commission (the “1933 Act Regulations”) under the
Securities Act of 1933, as amended (the “1933 Act”).
Such registration statement covers the registration of the
Securities under the 1933 Act. Promptly after execution and
delivery of this Agreement, the Company will prepare and file a
prospectus in accordance with the provisions of Rule 430B
(“Rule 430B”) of the 1933 Act Regulations and paragraph
(b) of Rule 424 (“Rule 424(b)”) of the 1933 Act
Regulations. Any information included in such prospectus that was
omitted from such registration statement at the time it became
effective but that is deemed to be part of and included in such
registration statement pursuant to Rule 430B is referred to as
“Rule 430B Information.” Each prospectus used in
connection with the offering of the Securities that
omitted Rule 430B Information is
herein called a “preliminary prospectus.” Such
registration statement, at any given time, including the amendments
thereto to such time, the exhibits and any schedules thereto at
such time, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act at such time and the
documents otherwise deemed to be a part thereof or included therein
by 1933 Act Regulations, is herein called the “Registration
Statement.” The Registration Statement at the time it
originally became effective is herein called the “Original
Registration Statement.” The final prospectus in the form
first furnished to the Underwriters for use in connection with the
offering of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933
Act at the time of the execution of this Agreement and any
preliminary prospectuses that form a part thereof, is herein called
the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“EDGAR”).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the
“1934 Act”), which is incorporated by reference in or
otherwise deemed by 1933 Act Regulations to be a part of or
included in the Registration Statement, such preliminary prospectus
or the Prospectus, as the case may be.
SECTION 1.
Representations and Warranties .
(a)
Representations and Warranties by the Company.
The Company represents and warrants
to each Underwriter as of the date hereof, the Applicable Time
referred to in Section 1(a)(ii) hereof and as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i)
Status as a Well-Known Seasoned Issuer . (A) At the time of
filing the Original Registration Statement, (B) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at
the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) of the 1933 Act
Regulations) made any offer relating to the Securities in reliance
on the exemption of Rule 163 of the 1933 Act Regulations and (D) at
the date hereof, the Company was and is a “well-known
seasoned issuer” as defined in Rule 405 of the 1933 Act
Regulations (“Rule 405”), including not having been and
not being an “ineligible issuer” as defined in Rule
405. The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405, and the
Securities, since their registration on the Registration Statement,
have been and remain eligible for registration by the Company on a
Rule 405 “automatic shelf registration statement.” The
Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of
the automatic shelf registration statement form.
At the time of filing the Original
Registration Statement, at the earliest time thereafter that the
Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) of the 1933 Act Regulations)
of the Securities and at the date hereof, the Company was not and
is not an “ineligible issuer,” as defined in Rule
405.
(ii)
Registration Statement, Prospectus and Disclosure at Time of
Sale . The Original Registration Statement became effective
upon filing under Rule 462(e) of the 1933 Act Regulations
(“Rule 462(e)”) on March 30, 2009, and any
post-effective amendment thereto also became effective upon filing
under Rule 462(e). No stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
Any offer that is a written
communication relating to the Securities made prior to the filing
of the Original Registration Statement by the Company or any person
acting on its behalf (within the meaning, for this paragraph only,
of Rule 163(c) of the 1933 Act Regulations) has been filed with the
Commission in accordance with the exemption provided by Rule 163 of
the 1933 Act Regulations (“Rule 163”) and otherwise
complied with the requirements of Rule 163, including without
limitation the legending requirement, to qualify such offer for the
exemption from Section 5(c) of the 1933 Act provided by Rule
163.
At the respective times the Original
Registration Statement and each amendment thereto became effective,
at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at the
Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), the Registration Statement complied and will
comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and did not and 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
statements therein not misleading.
Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or
any such amendment or supplement was issued and at the Closing Time
(and, if any Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a
material fact or omitted or will 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 preliminary prospectus
(including the prospectus or prospectuses filed as part of the
Original Registration Statement or any amendment thereto) complied
when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
As of the Applicable Time, neither
(x) the Issuer General Use Free Writing Prospectus(es) (as defined
below) issued at or prior to the Applicable Time (as defined
below), the Statutory Prospectus (as defined below) and the
information included on Schedule C hereto, all considered together
(collectively, the “General Disclosure Package”), nor
(y) any individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted 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.
As used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means
6:30 p.m. (Eastern Time) on September 9, 2009 or such other time as
agreed by the Company and Merrill Lynch.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the Commission by the
Company, (ii) is a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission or (iii) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it
contains a description of the Securities or of the offering that
does not reflect the final terms, in each case in the form filed or
required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company’s records pursuant
to Rule 433(g).
“Issuer General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors,
as evidenced by its being specified in Schedule E
hereto.
“Issuer Limited Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing
Prospectus.
“Statutory Prospectus”
as of any time means the prospectus relating to the Securities that
is included in the Registration Statement immediately prior to that
time, including any document incorporated by reference therein and
any preliminary or other prospectus deemed to be a part
thereof.
Each Issuer Free Writing Prospectus,
as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Securities or until
any earlier date that the Company notified or notifies Merrill
Lynch as described in Section 3(e), did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference
therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified.
The representations and warranties
in this subsection shall not apply to statements in or omissions
from the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through Merrill Lynch expressly for use therein.
(iii)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the “1934
Act Regulations”), and, when read together with the other
information in the Prospectus, (a) at the time the Original
Registration Statement became effective, (b) at the earlier of the
time the Prospectus was first used and the date and time of the
first contract of sale of Securities in this offering and (c) at
the Closing Time (and, if any Option Securities are purchased, at
the Date of Delivery), did not and 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 statements
therein not misleading.
(iv)
Independent Accountants . The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(v)
Financial Statements . The financial statements included in
the Registration Statement, the General Disclosure Package and the
Prospectus, together with the related schedules and notes, present
fairly, in all material respects, the financial position of the
Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders’
equity
and cash flows of the Company and
its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, present fairly, in all material
respects, in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary
financial information included in the General Disclosure Package
and the Prospectus present fairly, in all material respects, the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement. The pro forma financial statements
and the related notes thereto included in the Registration
Statement, the General Disclosure Package and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission’s rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein. Any disclosures contained in the
Registration Statement, the General Disclosure Package or the
Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the
Commission) comply with Regulation G under the 1934 Act and Item 10
of Regulation S-K of the 1933 Act Regulations, to the extent
applicable.
(vi)
No Material Adverse Change in Business . Since the
respective dates as of which information is given in the
Registration Statement, the General Disclosure Package or the
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business (a “Material Adverse Effect”), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for dividends on
the Common Stock as described in the Registration Statement in
amounts per share that are consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(vii)
Good Standing of the Company . The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the General Disclosure Package and the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
other 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.
(viii)
Good Standing of Subsidiaries . Each subsidiary listed on
Schedule G hereto (each a “Subsidiary” and,
collectively, the “Subsidiaries”) has been duly formed
and is validly existing as an entity in good standing under the
laws of the jurisdiction of its formation, has full power and
authority to own, lease and operate its properties and to conduct
its business as described in the General Disclosure Package 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, all of the issued and outstanding capital
stock or other ownership interest of each such Subsidiary has been
duly authorized 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; none of the
outstanding shares of capital stock
of any Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary. The only
subsidiaries, direct and indirect, of the Company are the
subsidiaries listed on Schedule G hereto.
(ix)
Capitalization . The authorized, issued and outstanding
capital stock of the Company is as set forth in the General
Disclosure Package and the Prospectus in the column entitled
“Actual” under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the General Disclosure Package and the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the General Disclosure Package and the
Prospectus). The shares of issued and outstanding capital stock,
including the Securities to be purchased by the Underwriters from
the Selling Stockholder, have been duly authorized and validly
issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock, including the Securities to be
purchased by the Underwriters from the Selling Stockholder, was
issued in violation of the preemptive or other similar rights of
any security holder of the Company.
(x)
Authorization of Agreement . This Agreement has been duly
authorized, executed and delivered by the Company.
(xi)
Authorization and Description of Securities . The Securities
to be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and
non-assessable; the Common Stock conforms to all statements
relating thereto contained in the General Disclosure Package and
the Prospectus and such description conforms to the rights set
forth in the instruments defining the same; no holder of the
Securities will be subject to personal liability by reason of being
such a holder; and the issuance of the Securities is not subject to
the preemptive or other similar rights of any securityholder of the
Company.
(xii)
Absence of Defaults and Conflicts . (a) Neither the Company
nor any of its subsidiaries is in violation of its charter, by-laws
or similar governing instruments or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, “Agreements and Instruments”) except for
such defaults that would not result in a Material Adverse Effect;
(b)(i) and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
herein and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the General Disclosure
Package and the Prospectus under the caption “Use of
Proceeds”) and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for
such conflicts, breaches, defaults or Repayment Events or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), (ii) nor will such action result in any violation of the
provisions of the charter, by-laws or similar governing instruments
of the Company or any subsidiary, (iii) nor will such action result
in any violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their assets,
properties or operations (except for such violations that would not
result in a Material Adverse Effect). As used herein, a
“Repayment Event” means any event or
condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any
person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xiii)
Absence of Labor Dispute . No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of
any of its or any subsidiary’s principal suppliers,
manufacturers, customers or contractors, which, in either case,
would result in a Material Adverse Effect.
(xiv)
Absence of Proceedings . There is no action, suit,
proceeding, inquiry or investigation before or brought by any court
or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which would reasonably be expected to result in a
Material Adverse Effect, or which might materially and adversely
affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by
the Company of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or
any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, would not reasonably be expected to
result in a Material Adverse Effect.
(xv)
Accuracy of Exhibits . There are no contracts or documents
which are required to be described in the Registration Statement,
the General Disclosure Package, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as
required.
(xvi)
Possession of Intellectual Property . Except as disclosed in
the Prospectus, the Company and its subsidiaries own or possess, or
can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property
(collectively, “Intellectual Property”) necessary to
carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
(xvii)
Absence of Manipulation . Neither the Company nor any
affiliate of the Company has taken, nor will the Company take,
directly or indirectly, any action which is designed to or which
has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities; the
Company will cause its affiliates to refrain from taking, directly
or indirectly, any action which is designed to or which would be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Securities.
(xviii)
Absence of Further Requirements . No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of
the transactions contemplated by this Agreement, except such as
have been already obtained or as may be required under the 1933 Act
or the 1933 Act Regulations or state securities laws.
(xix)
Possession of Licenses and Permits . The Company and its
subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure so to
possess would not, singly or in the aggregate, result in 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 so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not, singly or in the aggregate, result in 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 Governmental Licenses which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in a Material Adverse Effect.
(xx)
Title to Property . The Company and its subsidiaries have
good and marketable title to all real property owned by the Company
and its subsidiaries and good title to all other properties owned
by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of
any kind except such as (a) are described in the General Disclosure
Package and the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries; and all of the
leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in
the General Disclosure Package and the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has
any notice of any material claim of any sort that has been asserted
by anyone adverse to the rights of the Company or any subsidiary
under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any
such lease or sublease.
(xxi)
Investment Company Act . The Company is not required, and
upon the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in
the General Disclosure Package and the Prospectus will not be
required, to register as an “investment company” under
the Investment Company Act of 1940, as amended (the “1940
Act”).
(xxii)
Environmental Laws . Except as described in the Registration
Statement and except as would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, (A)
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, asbestos-containing materials or
mold (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) 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, (C) 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 (D) there are no events
or circumstances that would
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.
(xxiii) Accounting
Controls and Disclosure Controls . The Company and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (1) transactions
are executed in accordance with management’s general or
specific authorization; (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
GAAP and to maintain accountability for assets; (3) access to
assets is permitted only in accordance with management’s
general or specific authorization; and (4) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the General Disclosure
Package and the Prospectus, since the end of the Company’s
most recent audited fiscal year, there has been (I) no material
weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (II) no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
The Company and its consolidated
subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act
is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.
(xxiv)
Compliance with the Sarbanes-Oxley Act . There is and has
been no failure on the part of the Company or 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 of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and Sections
302 and 906 related to certifications.
(xxv)
Pending Proceedings and Examinations . The Registration
Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the 1933 Act, and the Company is not
the subject of a pending proceeding under Section 8A of the 1933
Act in connection with the offering of the Securities.
(xxvi) Payment
of Taxes . All United States federal income tax returns of the
Company and its subsidiaries required by law to be filed have been
filed and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid, except assessments
against which appeals have been or will be promptly taken and as to
which adequate reserves have been provided. The United States
federal income tax returns of the Company through the fiscal year
ended December 31, 2008 have been settled and no assessment in
connection therewith has been made against the Company. The Company
and its subsidiaries have either filed all other tax returns that
are required to have been filed by them pursuant to applicable
foreign, state, local or other law, or have obtained extensions for
the filing of such returns, except insofar as the failure to file
such returns or obtain such extensions would not result in a
Material Adverse Effect, and has paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company
and its subsidiaries, except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been
provided or where the failure to pay would not reasonably be
expected to have a Material Adverse Effect. The charges, accruals
and reserves on the books of the Company in respect of any income
and corporation tax liability for any years not finally
determined
are adequate to meet any assessments
or re-assessments for additional income tax for any years not
finally determined, except to the extent of any inadequacy that
would not result in a Material Adverse Effect.
(xxvii) Insurance
. The Company and its subsidiaries carry or are entitled to the
benefits of insurance, with financially sound and reputable
insurers, in such amounts and covering such risks as is generally
maintained by companies of established repute engaged in the same
or similar business, and all such insurance is in full force and
effect. The Company has no reason to believe that it or any
subsidiary will not be able (A) to renew its existing insurance
coverage as and when such policies expire or (B) 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.
(xxviii) Statistical and
Market-Related Data . Any statistical and market-related data
included in the Registration Statement, the General Disclosure
Package and the Prospectus are based on or derived from sources
that the Company believes to be reliable and accurate, and, where
required, the Company has obtained the written consent to the use
of such data from such sources.
(xxix) Foreign
Corrupt Practices Act . Neither the Company 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 would result in a violation by such persons 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, to the knowledge of the Company, its affiliates have
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.
(xxx)
Money Laundering Laws . The operations of the Company 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 jurisdictions, the rules and
regulations thereunder and any related or similar 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 with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company,
threatened.
(xxxi) OFAC
. Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or person acting on
behalf of the Company 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 the 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.
(xxxii) Registration
Rights . There are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under
the 1933 Act.
(b)
Officer’s Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives
or to counsel for the Underwriters shall be deemed a representation
and warranty by the Company to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale and
Delivery to Underwriters; Closing .
(a)
Initial Securities. On
the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in
Schedule D, that proportion of the number of Initial Securities set
forth in Schedule B opposite the name of the Company, which the
number of Initial Securities set forth in Schedule A opposite the
name of such Underwriter, plus any additional number of Initial
Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof, bears to the total
number of Initial Securities, subject, in each case, to such
adjustments among the Underwriters as the Representatives in their
sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b)
Option Securities. In
addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth,
the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 225,000 shares of
Common Stock, as set forth in Schedule B, at the price per share
set forth in Schedule D, less an amount per share equal to any
dividends or distributions declared by the Company and payable on
the Initial Securities but not payable on the Option Securities.
The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time
only for the purpose of covering overallotments which may be made
in connection with the offering and distribution of the Initial
Securities upon notice by Merrill Lynch to the Company setting
forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date
of payment and delivery for such Option Securities. Any such time
and date of delivery (a “Date of Delivery”) shall be
determined by Merrill Lynch, but shall not be later than seven full
business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Securities set
forth in Schedule A opposite the name of such Underwriter bears to
the total number of Initial Securities, subject in each case to
such adjustments as Merrill Lynch in its discretion shall make to
eliminate any sales or purchases of fractional shares.
(c)
Payment. Payment of
the purchase price for, and delivery of certificates for, the
Initial Securities shall be made at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP, Four Times Square, New York, New
York 10036, or at such other place as shall be agreed upon by the
Representatives and the Company, at 9:00 A.M. (Eastern time)
on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof
(unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being
herein called “Closing Time”).
In addition, in the event that any
or all of the Option Securities are purchased by the Underwriters,
payment of the purchase price for, and delivery of certificates
for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the
Representatives and the Company, on each Date of Delivery as
specified in the notice from the Representatives to the
Company.
Payment shall be made to the Company
by wire transfer of immediately available funds to bank accounts
designated by the Company against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for
the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to
accept delivery of, receipt for, and make
payment of the purchase price for,
the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Merrill Lynch, individually and not as
representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time
or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
(d)
Denominations; Registration. Certificates for the Initial Securities and the
Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in
writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates
for the Initial Securities and the Option Securities, if any, will
be made available for examination and packaging by the
Representatives in The City of New York not later than
10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may
be.
SECTION 3. Covenants
of the Company . The Company covenants with each Underwriter as
set forth in subsections (a) through (l) below:
(a)
Compliance with Securities Regulations and Commission Requests;
Payment of Filing Fees. The Company, subject to Section 3(b), will
comply with the requirements of Rule 430B and will notify the
Representatives immediately, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement or
new registration statement relating to the Securities shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or the
filing of a new registration statement or any amendment or
supplement to the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for
additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or such new registration statement or of any order
preventing or suspending the use of any preliminary prospectus, or
of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes or of any
examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject
of a proceeding under Section 8A of the 1933 Act in connection with
the offering of the Securities. The Company will effect the filings
required under Rule 424(b), in the manner and within the time
period required by Rule 424(b) (without reliance on Rule
424(b)(8)), and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment. The Company shall pay the required Commission filing fees
relating to the Securities within the time required by Rule
456(b)(1) (i) of the 1933 Act Regulations without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the 1933
