ATM EQUITY OFFERING
SM
SALES AGREEMENT
COMMON STOCK, $1.00 PAR VALUE PER
SHARE
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
Common Stock
(par value $1.00 per share)
ATM EQUITY OFFERING
SM
SALES AGREEMENT
MERRILL LYNCH,
PIERCE, FENNER & SMITH
INCORPORATED
4 World Financial Center
New York, New York 10080
AMR
Corporation, a Delaware corporation (the “ Company
”), confirms its agreement with Merrill Lynch, Pierce, Fenner
& Smith Incorporated (the “ Agent ”), as
follows:
The
Company proposes to issue and sell from time to time through the
Agent, as sales agent, shares (the “ Shares " )
of the Company’s common stock, par value $1.00 per share (the
“ Common Stock ”), having an aggregate offering
price of up to $300,000,000, on the terms set forth in
Section 2 of this ATM Equity Offering SM Sales Agreement (this “ Agreement
”).
The
Company has prepared and filed on Form S-3 with the Securities and
Exchange Commission (the “ Commission ”) a
registration statement (File Nos. 333-136563 and 333-136563-01)
relating to the Company’s debt securities, Common Stock
(including the Shares) and other securities (collectively, the
“ Securities ”) and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the “ Securities Act ”).
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 Securities
Act at such time and the documents otherwise deemed to be a part
thereof or included therein by the rules and regulations under the
Securities Act, is herein called the “ Registration
Statement .” The Registration Statement at the time it
originally became effective is herein called the “
Original Registration Statement .”
The
Company has prepared a prospectus supplement specifically relating
to the Shares (the “ Prospectus Supplement ”)
which supplements the base prospectus included as part of such
registration statement. The Company has furnished to the Agent, for
use by the Agent, copies of the base prospectus included as part of
the Original Registration Statement, as supplemented by the
Prospectus Supplement, relating to the Shares. The base prospectus,
including all documents incorporated therein by reference pursuant
to Item 12 of Form S-3, included in the Registration
Statement, as it may be supplemented by the Prospectus Supplement,
in the form in which such
2
prospectus
and/or Prospectus Supplement have most recently been filed by the
Company with the Commission pursuant to Rule 424(b) under the
Securities Act is herein called the “ Prospectus
.”
The
term “ Issuer Free Writing Prospectus ” means
any “issuer free writing prospectus,” as defined in
Rule 433 under the Securities Act (“
Rule 433 ”), relating to the public offer of the
Shares that is prepared or approved in writing in advance by the
Company and that is required to be filed with the Commission by the
Company.
The
term “ Applicable Time ” means, with respect to
any Shares, the time of sale of such Shares pursuant to this
Agreement.
The
terms of the public offering of any of the Shares are set forth in
the General Disclosure Package relating thereto (as defined in
Section 1(a)(iii) below).
Section 1.
Representations and Warranties
(a)
Representations and Warranties of the Company. The Company
represents and warrants to the Agent that as of the date of this
Agreement, any applicable Registration Statement Amendment Date (as
defined in Section 3 below), each Company Periodic Report Date
(as defined in Section 3 below), each Applicable Time and each
Settlement Date (as defined in Section 2 below):
(i)
Form S-3 Eligibility . The Company meets the
requirements for use of Form S-3 under the Securities
Act.
(ii) Effective
Registration Statement . The Company is a well-known seasoned
issuer (as defined in Rule 405 under the Securities Act
(“ Rule 405 ”)) eligible to use the
Registration Statement as an automatic shelf registration
statement; the Registration Statement has been filed with the
Commission, became effective upon filing under Rule 462(e) under
the Securities Act and is an “automatic shelf registration
statement” as defined in Rule 405; the Company has not
received from the Commission any notice pursuant to
Rule 401(g)(2) under the Securities Act objecting to the use
of the automatic shelf registration statement form; no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission; no order preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus has
been issued by the Commission; any request on the part of the
Commission for additional information has been complied with to the
reasonable satisfaction of counsel to the Agent. At the respective
times the Original Registration Statement and each amendment
thereto became effective, at any deemed effective date pursuant to
Rule 430B(f)(2) and at each Settlement Date, the Registration
Statement complied and will comply in all material respects with
the requirements of the Securities Act and the rules and
regulations
3
under the
Securities Act (the “ Securities Act Regulations
”) and the Trust Indenture Act of 1939, as amended (the
“ TIA ”), and the rules and regulations under
the TIA . The Registration Statement, when it became effective or
becomes effective, did not or 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; provided, however, that the representations and
warranties in this Section 1(a)(ii) shall not apply to
statements in or omissions from the Registration Statement, the
General Disclosure Package, the Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
written information furnished to the Company by the Agent expressly
for use therein or to those parts of the Registration Statement
constituting a Statement of Eligibility and Qualification under the
TIA (Form T-1) of a trustee pursuant to an indenture.
(iii)
Prospectus and General Disclosure Package . Neither the
Prospectus nor any amendments or supplements thereto, at the time
the Prospectus or any such amendment or supplement is issued, at
each Applicable Time and at each Settlement Date, will include an
untrue statement of a material fact 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; the Prospectus will comply when filed with the
Commission in all material respects with the Securities Act
Regulations and the Prospectus delivered to the Agent for use in
connection with this offering was or will be, as the case may be,
identical to the electronically transmitted copies thereof filed
with the Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval System (“ EDGAR ”),
except to the extent permitted by Regulation S-T or required
under Rule 424(e); as of each Applicable Time (as defined
below) and related Settlement Date, neither (x) the applicable
Issuer Free Writing Prospectus(es) issued at or prior to such
Applicable Time, nor (y) the Prospectus, all considered
together (collectively, and, with respect to any Shares, together
with the public offering price, the “ General Disclosure
Package ”), will include any untrue statement of a
material fact 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
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 Shares or until any earlier date that the Company
notified or notifies the Agent, does not include any information
that conflicts with the information contained in the Registration
Statement or the Prospectus that has not been superseded or
modified; provided, however, that the representations and
warranties in this Section 1(a)(iii) shall not apply to
statements in or omissions from the Registration Statement, the
General Disclosure Package, the Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
written information furnished to
4
the Company by
the Agent expressly for use therein or to those parts of the
Registration Statement constituting a Statement of Eligibility and
Qualification under the TIA (Form T-1) of a trustee pursuant to an
indenture.
(iv)
Incorporated Documents . The General Disclosure Package and
the Prospectus as delivered from time to time shall incorporate by
reference the most recent Annual Report of the Company on Form
10-K, as amended, filed with the Commission and each Quarterly
Report of the Company on Form 10-Q, as amended, filed with the
Commission and each Current Report of the Company on Form 8-K filed
(not furnished) with the Commission and such other reports as
specifically incorporated by reference in the General Disclosure
Package and the Prospectus (the “ Incorporated
Documents ”). The Incorporated Documents filed on or
before the date hereof or hereafter are referred to herein as the
“ SEC Reports .” The Incorporated Documents at
the time they were or hereafter are filed with the Commission, or
if amended, as so amended, complied and will comply in all material
respects with the requirements of the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), and the
rules and regulations of the Commission thereunder (the “
Exchange Act Regulations ”).
(v) Independent
Accountants . Ernst & Young LLP, who reported on the annual
consolidated financial statements of the Company that are
incorporated by reference in the Prospectus, is an independent
registered public accounting firm as required by the Securities Act
and the Securities Act Regulations.
(vi) Financial
Statements . The financial statements of the Company, together
with the related schedules and notes, included in the SEC Reports
and incorporated by reference into the Registration Statement and
the Prospectus, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated
and the statement of income, shareholders’ equity and cash
flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been or will be
prepared in conformity with generally accepted accounting
principles (“ GAAP ”) applied on a consistent
basis throughout the periods involved (except as indicated in the
footnotes to such financial statements). The supporting schedules
included in the SEC Reports and incorporated by reference into the
Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated
therein.
(vii) 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 or contemplated thereby, (A) there
has been no
5
material
adverse change in the condition, financial or otherwise, or the
earnings, results of operations or general affairs of the Company
and its subsidiaries taken as a whole, 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 (as defined
below), other than those in the ordinary course of business, which
are material with respect to the Company and its Subsidiaries taken
as a whole, and (C) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of
its capital stock.
(viii) Good
Standing of the Company . The Company is a corporation duly
incorporated and validly existing in good standing under the laws
of the State of Delaware and has corporate power and authority to
own its properties and conduct its business as described in the
General Disclosure Package and the Prospectus and to enter into and
perform its obligations under, or as contemplated by, this
Agreement. 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.
(ix) Good
Standing of Designated Subsidiaries . Each of American
Airlines, Inc. (“ American ”), American Beacon
Advisors, Inc., AMR Eagle Holding Corporation, American Eagle
Airlines, Inc. and Executive Airlines, Inc. (each a “
Subsidiary ” and, collectively, the “
Subsidiaries ”) has been duly organized and is validly
existing as a corporation, partnership or limited liability
company, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case may
be, has the 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 corporation, partnership or limited liability company, as
the case may be, 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 General Disclosure Package and the
Prospectus, all of the issued and outstanding equity interests of
each such Subsidiary have been duly authorized and validly issued,
are fully paid and non-assessable and are owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
(except for the security interest in all of the common stock of
American granted by the Company pursuant to
6
the Pledge
Agreement dated as of December 17, 2004 from the Company to
Citicorp USA, Inc., as collateral agent (the “ Pledge
Agreement ”)); none of the outstanding equity interests
of any Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary. American
and AMR Eagle Holding Corporation are the only “significant
subsidiaries” of the Company (as such term is defined in
Rule 1-02 of Regulation S-X).
(x)
Capitalization . The authorized, issued and outstanding
shares of capital stock of the Company is as set forth in the
General Disclosure Package and the Prospectus (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant
to reservations, agreements, convertible securities, options or
employee benefit plans referred to in the General Disclosure
Package and the Prospectus and/or referred to in clauses (B), (C),
(D), or (E) of the last sentence of Section 3(h) hereof. The
shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of
the Company was issued in violation of any preemptive or other
similar rights of any securityholder of the Company. Other than as
referred to in this subparagraph (x) or as disclosed in the
General Disclosure Package and the Prospectus, no options, warrants
or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests
in the Company are outstanding.
(xi)
Authorization of this Agreement . This Agreement has been
duly authorized, executed and delivered by the Company.
(xii)
Authorization and Description of Common Stock . The Common
Stock conforms in all material respects to the description thereof
contained in the General Disclosure Package and the Prospectus, and
such description will conform in all material respects to the
rights set forth in the instruments defining the same. The Shares
have been duly authorized and, when issued and paid for as
contemplated by this Agreement, will be validly issued and will be
fully paid and non-assessable; no holder of the Shares will be
subject to personal liability by reason of being such a holder; and
such issuance of the Shares is not subject to the preemptive or
other similar rights of any securityholder of the
Company.
(xiii) Absence
of Defaults and Conflicts . Neither the Company nor any of its
Subsidiaries is in violation of its charter or by-laws or other
constituting or organizational document 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
7
which the
Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries may be bound, or to which any of
the property or assets of the Company or any of its Subsidiaries is
subject (collectively, “ Agreements and Instruments
”), except for such defaults that would not reasonably be
expected to result in a Material Adverse Effect; and the execution
and delivery by the Company of this Agreement, the consummation by
the Company of the transactions contemplated by this Agreement, and
the compliance by the Company with its obligations hereunder and
the terms hereof 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 a 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 of its Subsidiaries pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, defaults or Repayment Events
or liens, charges or encumbrances that, singly or in the aggregate,
would not reasonably be expected to result in a Material Adverse
Effect), or result in a violation of the provisions of the
Certificate of Incorporation or By-Laws, as amended, or other
constituting or organizational document of the Company or any of
its Subsidiaries, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its Subsidiaries or any of their
respective assets, properties or operations, except, in each case,
for such conflicts, breaches, violations or defaults, that, singly
or in the aggregate, would not reasonably be expected to 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 prior to the stated
maturity or date of mandatory redemption or repayment thereof of
all or a portion of such indebtedness by the Company or any of its
Subsidiaries.
(xiv) Absence
of Labor Dispute . Other than as described in the General
Disclosure Package and the Prospectus, no labor dispute with the
employees of the Company or any of its Subsidiaries exists or, to
the knowledge of the Company, is imminent, which the Company
expects to have a Material Adverse Effect.
(xv) Absence of
Proceedings . Other than as set forth in the General Disclosure
Package and the Prospectus, 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 the Company or
any of its subsidiaries which, in the judgment of the Company, is
likely to result in a Material Adverse Effect.
8
(xvi) Absence
of Further Requirements . No consent, approval, authorization,
order or license of, or filing with or notice to, any government,
governmental instrumentality, regulatory body or authority or
court, domestic or foreign, is required for the valid
authorization, execution, delivery and performance by the Company
of this Agreement for the valid authorization, issuance and
delivery of the Shares, or for the performance by the Company of
its obligations hereunder, except such as have been already
obtained and or as may be required under the Securities Act or the
Securities Act Regulations or state securities laws in connection
with the Registration Statement and the listing of the Shares on
the New York Stock Exchange (“NYSE”).
(xvii)
Investment Company Act . Neither the Company nor any of its
Subsidiaries is, nor upon the issuance and sale of the Shares as
contemplated by this Agreement and the application of the net
proceeds therefrom as described in the General Disclosure Package
and the Prospectus will be, an “investment company” or
an entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company
Act of 1940, as amended.
(xviii)
Environmental Laws . There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Company or any of its Subsidiaries (or,
to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously
owned or leased by the Company or its Subsidiaries in violation of,
and neither the Company nor any of its Subsidiaries has any
liability under, any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit applicable to the Company or any
of its Subsidiaries, except for any violation or remedial action
which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and
remedial actions, a Material Adverse Effect; there has been no
material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due
to or caused by the Company or any of its Subsidiaries or with
respect to which the Company or any of its Subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would
not be reasonably likely to have, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, a Material Adverse Effect. The
terms “hazardous wastes,” “toxic wastes,”
“hazardous substances” and “medical wastes”
shall have the meanings specified in any applicable
9
local, state,
federal and foreign laws or regulations with respect to
environmental protection.
In the ordinary
course of its business, the Company conducts a periodic review of
the effect of any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“ Environmental
Laws ”) on the business, operations and properties of the
Company and its Subsidiaries, in the course of which it identifies
and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities have not had
and would not, singularly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(xix) ERISA
. Each of the Company and American is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (“
ERISA ”); no “reportable event” (as
defined in ERISA) has occurred with respect to any “pension
plan” (as defined in ERISA) for which either the Company or
American would have any liability; neither the Company nor American
has incurred and does not expect to incur liability under
(A) Title IV of ERISA with respect to the termination of, or
withdrawal from, any “pension plan” or
(B) Section 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the “ Code ”); and
each “pension plan” for which either the Company or
American would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure
to act, which the Company reasonably expects would cause the loss
of such qualification.
(xx)
Insurance . The Company and each of its Subsidiaries carry,
or are covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of their respective businesses
and the value of their respective properties.
(xxi) Taxes
. The Company and each of its Subsidiaries has filed all federal,
state and local income and franchise tax returns required to be
filed through the date hereof, except for such exceptions as would
not individually or collectively have a Material Adverse Effect,
and has paid all taxes due thereon, except such as are being
contested in
10
good faith by
appropriate proceedings, and no tax deficiency has been determined
adversely to the Company or any of its Subsidiaries which has had,
nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
Subsidiaries, might have, a Material Adverse Effect.
(xxii) Internal
Controls . The Company (A) makes and keeps accurate books
and records that, in reasonable detail, accurately and fairly
reflect the transactions and disposition of the assets of the
Company, and (B) maintains internal accounting controls which
provide reasonable assurance that (i) transactions are executed in
accordance with management’s authorization, (ii) transactions
are recorded as necessary to permit preparation of its financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for its assets,
(iii) access to its assets is permitted only in accordance
with management’s authorization and (iv) the recorded
accountability for its assets is compared with existing assets at
reasonable intervals. The Company maintains a system of internal
control over financial reporting (as such term is defined in
Rule 13a-15(f) of the Exchange Act) that has been designed by
the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company is not aware of any material weaknesses in
its internal control over financial reporting which are reasonably
likely to adversely affect the Company’s ability to record,
process, summarize and report financial information. Since the date
of the latest audited financial statements included in the General
Disclosure Package and the Prospectus, there has been no change in
the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting.
(xxiii)
Disclosure Controls and Procedures. The Company maintains
disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) of the Exchange Act) that have been 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 principal financial officer by
others within those entities; such disclosure controls and
procedures are effective.
(xxiv) No
Unlawful Payments . The Company has implemented compliance
programs for purposes of (i) informing the appropriate
officers and employees of the Company and its Subsidiaries of
(A) the Company’s policies against (1) the use of
corporate funds for unlawful contributions, gifts, entertainment or
other unlawful expenses
11
relating to
political activity, (2) direct or indirect unlawful payments
to any foreign or domestic government official or employee from
corporate funds, (3) violations of the Foreign Corrupt Practices
Act of 1977, as amended, and (4) making any bribes, rebates,
payoffs, influence payments kickbacks or other unlawful payments
and (ii) requiring such officers and employees to report to
the Company any knowledge they may have of violations of the
Company’s policies referred to above and no such reports have
been made.
(xxv) No
Brokerage Commission; Finder’s Fee . To the best of the
Company’s knowledge after due inquiry, there are no
contracts, agreements or understandings between the Company or any
Subsidiary and any person that would give rise to a valid claim
against the Company or the Agent for a brokerage commission,
finder’s fee or other like payment in connection with this
offering.
(xxvi) Dividend
Payments . Except as provided in the Pledge Agreement, neither
American nor AMR Eagle Holding Corporation 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 on its respective
capital stock or from repaying to the Company any loans or advances
to it from the Company, except as would not have a Material Adverse
Effect.
(xxvii)
Reporting Company . The Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange
Act.
(xxviii) Air
Carrier Certification . American, a wholly owned subsidiary of
the Company, (i) is an “air carrier” within the
meaning of 49 U.S.C. Section 40102(a), (ii) holds an air
carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of the
Unites States Code for aircraft capable of carrying 10 or more
individuals or 6,000 pounds or more of cargo, and (iii) is a
“citizen of the United States” as defined in 49 U.S.C.
40102.
(xxix)
Possession of Licenses and Permits . The Company and its
Subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “ Licenses
”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies and third parties, governmental or
otherwise, necessary to conduct the business now operated by them
as described in the General Disclosure Package and the Prospectus,
except for such failures to possess Licenses as 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 Licenses, except where the failure so
to
12
comply would
not, singly or in the aggregate, have a Material Adverse Effect;
all of the Licenses are valid and in full force and effect, except
when the invalidity of such Licenses or the failure of such
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
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xxx) Other
Agency Agreements . The Company has not entered into any other
sales agency agreements or other similar arrangements with any
agent or any other representative in respect of the Shares and the
equity shelf program established by this Agreement.
(xxxi)
Actively-Traded Security. The Common Stock is an
“actively-traded security” exempted from the
requirements of Rule 101 of Regulation M under the
Exchange Act by subsection (c)(1) of such rule.
(xxxii)
Well-Known Seasoned Issuer . (A)(i) At the time of filing
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 Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Securities
Act, the Company was a “well-known seasoned issuer” as
defined in Rule 405, including not having been an
“ineligible issuer” as defined in Rule 405; and
(B) 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) under the Securities Act) of the
Securities and at the date hereof, the Company was not and is not
an “ineligible issuer” as defined in
Rule 405.
(b)
Officers’ Certificates . Any certificate signed
by any officer of the Company delivered to the Agent or to counsel
for the Agent pursuant to or in connection with this Agreement
shall be deemed a representation and warranty by the Company to the
Agent as to the matters covered thereby as of the date or dates
indicated in such certificate.
13
Section 2.
Sale and Delivery of Securities . On the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company
agrees to issue and sell through
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